Gladstones Solicitors Hearing Coming Up....

edited 31 August 2017 at 12:53AM in Parking Tickets, Fines & Parking
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edited 31 August 2017 at 12:53AM in Parking Tickets, Fines & Parking
Hi All,


I received a Gladstones Solicitors claim (Horizon Parking Limited) in which the witness statement is based upon the following:


- The defendant is liable for parking charges relating to the parking of a vehicle on 8 different occasions in 2014 with no ticket in Sainsburys car park

- The defendant says he has not seen no correspondence however this is not possible as the ticket was affixed to his windscreen, furthermore the notices were sent to the defendants registered address

- The claimant does not have to prove who the driver was, the defendant was evasive and didn't identify the driver

- My company does have the right to enforce charges as said in VCS v HM Revenue and Parking Eye v Beavis

- The charge is at industry rate

- Signs were clear and unambiguous

- The current debt has increased due to Gladstones costs.


They also included a contract for supply of goods and services between Horizon and Sainsburys, dated August 2013. There is no start or end date. There is also a copy of the signage (30 mins free, 1 hour £1, up to two hours £1.50, parking charge of £60 etc) a copy of the plan for the land and also a copy of all the tickets sent to me, pictures of my car parked there in 2014 (I was not the driver, just the registered keeper) and a copy of the letter before claim.


Now for my defence, what else do I need to include? Do I need to do a witness statement and skeleton argument, I have till Friday as my hearing is on 15.09.17 and anything I rely on needs to be sent to the court 14 days prior to the hearing.





IN THE OXFORD COMBINED COURT
CLAIM NO. XX

BETWEEN:

Horizon Parking Limited
(Claimant)

-AND-


XX
(Defendant)


DEFENCE


Introduction

1. I am XX the defendant in this matter. My address for service is XX

2. This is my statement of truth and my defence.

3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

4. For the avoidance of doubt on the relevant date I was the registered keeper of a xxxxx, registered number xxxxx

5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at Sainsbury's xxx, HP20 2LA on 2 April, 4 April, 1st May, 6th May, 12th May, 22nd May, 28th May, 30th May (2016).



Purported Basis of Claim

6. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:

a. There was a contract formed by the defendant and the claimant on 2 April, 4 April, 1st May, 6th May, 12th May, 22nd May, 28th May, 30th May (2016).




b. There was an agreement to pay a sum or parking charge

c. That there were Terms and Conditions prominently displayed around the site

d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.

e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.

f. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.

g. Further that the defendant has not paid the alleged debt.



Rebuttal of Claim

7. It is denied that:

a. A contract was formed

b. There was an agreement to pay a parking charge.

c. That there were Terms and Conditions prominently displayed around the site.

d. That in addition to the Parking charge there was an agreement to pay additional and unspecified additional sums.

e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.

f. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.

g. That I am liable for the purported debt.

8. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.

9. The claimant is put to the strictest proof of their assertions.




My Defence

10. My defence will rely principally upon the following points:





  • The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimant is known to be a serial issuer of generic claims similar to this one. HM Courts Service has identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

  • Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

  • The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant

  • The claimant has not provided enough details in the particulars of claim to file a full defence.
  • In particular, the full details of the contract which it is alleged was broken have not been provided.

    a) The Claimant has disclosed no cause of action to give rise to any debt.
    b) The Claimant has stated that a parking charge was incurred.
    c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim.
    The Claimant has therefore disclosed no cause of action.
    d) 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 Particulars of Claim are incompetent in disclosing no cause of action.

11.
12.
13.
14.
15. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.

16. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

13. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:

18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

14. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.

15. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.

In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking






control and enforcement





  • who has the responsibility for putting up and maintaining signs.
  • the definition of the services provided by each party to the agreement.

    16. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.


  • That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
  • In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
Rebuttal of the claimants witness statement





  • XX, employee of the claimant company (Horizon Parking Limited) has posted a robo claim witness statement. This is simply a rehash of all the other Gladstone's Roboclaims where the particulars and the Witness Statements are a) car park and b) introduce points that were never in any defence to begin with or ignore any points raised in the original defence. The sign of a template is one where they failed to spell out the case (the particulars) and then make no effort to address a defence.





  • 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’





  • On the 19th August 2016 DJ 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.








  • The claimant disputes the fact the defendant has not seen any previous correspondence in repsect of this claim, as parking charge notices were issued and affixed to the vehicles windscreen (evidenced by photographs in the clients bundle). As a result of this the defendant would have been made aware of this charge, and as the defendant admitted to residing at XX there is no reasonable explanation as to why the notices would not have been received.





  • In a rebuttal to the above point the defendant puts the claimant to strict proof that he was the driver at the time the tickets were issued. The defendant denies he was the driver of the vehicle, registration xx, and was therefore unaware of any tickets. In addition although the defendant was the registered owner of the vehicle, the defendant states that this is by virtue of the V5C logbook on which it clearly states ‘This document is not proof of ownership. It shows who is responsible for registering and taxing the vehicle’. The DVLA make a point of saying that the person named on the registration document is not necessarily the owner. The defendant states that he is not only not the driver, but only a person who is responsible for taxing the vehicle.





  • In regards to a reasonable explanation for the notices to owner not being received, is the defendant has not been resident at the registered address of the vehicle since 2010, as he was at the home of his grandmother who suffers from ill health. This explanation was given to, and accepted by District Judge Wakem at the County Court in Oxford, on the 7th June 2017.





  • In addition the claimant has misquoted VCS v HM Revenue & Customs [2013] EWCA Civ 186, yet again demonstrating a blatant disregard for the court in not only posting template claims to the court, but also misquoting case law. The claimant states they have misquoted the aforementioned case, in that in the current matter they have no right to issue tickets as there is no consideration or potential to complete a bargain.





  • Furthermore the claimant has states the charge is set an industry standard so as to suitable satisfy their company’s legitimate interest. Yet again they are misquoting case law, at Paragraph 198 of Parking Eye Limited v Beavis [2005], it is their client's legitimate interest they are protecting and their interest doesn't come into it.





  • The claimant asserts the signs were clear and unambiguous, the claimant has further drawn the courts attention to an exhibit of the sign erected on 07.01.2014 however has failed to signify where the signs were, any photos of the signs erected, and have only provided a poorly construed satellite plan in which it is not clear where a) the defendants car was parked within the plan (again all evidence points to a template claim from the claimant, and thus an abuse of the court process) and b) The defendant has not provided any photos of the signs erected, or their geographical location in reference to the defendants vehicle.





  • The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis case. There is no comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015. Whilst the Claimant withheld any photos of the signs on site, the Defendant contends these are illegible with terms hidden in small print, unlike the 'clear and prominent' signs which created a contract Mr Beavis was 'bound to have seen'.





  • The defendant refers the court to the exhibits filed with the court in which the photos clearly show the position of the vehicle and the surrounding area in which there are no clear signs visible within the vicinity. Therefore it is unreasonable for a contract or warning to be communicated when it is not adequately displayed.





  • Also the claimant purports the debt has risen by virtue of the matter being passed to the company’s legal representatives, namely Gladstone’s Solicitors. In the case of Parking Eye v Somerfield Stores Ltd [2011] at Para 419 HHJ Hegarty QC states: It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.’ The defendant asks the court to put the claimant to strict proof of the costs of £50 that have been incurred (that is the original PCN amounts to £60, they have added £50 as extra costs), and not double charging for legal services as has been the case in Gladstone’s Solicitors history amongst the courts, by issuing template claims against unaware motorists hoping to recover costs.





  • In view of all the foregoing the court is invited to strike the matter out of its own motion.
  • The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.

    This statement is true to the best of my knowledge and belief.

    Signed ______________________

    Dated 29-08-2017











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