Help Requested With WS - Court Hearing vs Gladstones & PPM Ltd

muleskinner

Well, this is interesting. According to the Land Registry the site isn't owned by Pentland Management but by Linden Homes.

I'm guessing Linden contract out the management of the site to Pentland who, in turn, have contracted out the parking enforcement to PPM. I have anecdotal evidence (from someone who lives in flats on the site) that it was Pentland that contracted PPM.

So I suppose PPM/Gladstards have to prove landowner authority all the way from Linden, via Pentland to themselves?

Also I'm pleased to say that Google street view still has photos of the site from August 2016 so you can see there were no parking restrictions in place other than a sign that says simply 'loading only', thus confirming the restrictions had recently changed. I've screengrabbed these just in case!

muleskinner

OK, so the scam machine rumbles on. I now have a hearing date set for the 12th Feb, WS and docs have to be in for the 2nd Jan.

I have included my first draft WS below and would be extremely grateful for any feedback. I fear it is rather long-winded and also that I may be blurring the line between a simple statement of facts and presenting an argument, though it's difficult to separate the two.

Any input would be very much appreciated.

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Witness Statement

1. Sequence Of Events
1.1 I am xxxx xxxxxx, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant’s Solicitors.

1.2. This claim refers to a parking incident in an unmarked lay-by outside the co-op in Bradford-on-Avon. To all intents and purposes this bay appears either to be part of the public highway or to belong to the co-op (exhibit 1).

1.3. Historically there have been no charges for parking in this bay. It has been marked simply ‘Loading Only’ (see exhibit 2 from August 2016) and co-op customers were always told it was permissible to park there for short periods if on co-op business.

1.4. On the 7th January 2017 I parked my vehicle in said lay-by, as I was accustomed to do, for the purposes of buying groceries from the co-op and delivering a package to the Post Office there.

1.5. After a period of time, which I estimate to be less than five minutes, I noticed a parking attendant (the Claimant’s representative) approach my vehicle with the clear intention of issuing some kind of ticket.

1.6. I returned to my vehicle immediately and explained to the Claimant’s representative that I had no idea that I was violating any kind of parking restrictions and that I would remove my vehicle immediately if I was. The Claimant’s representative said that he would have to issue me with a Parking Charge Notice (PCN) and that I would have to remove my vehicle. I estimate this exchange to have lasted around two minutes.

1.7. After this exchange the Claimant’s representative took pictures of my vehicle and issued me with a PCN (exhibit 3) that is the subject of this claim. The PCN states that the charge is for ‘unauthorised parking’ and that I ‘parked on private property in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site’.

1.8. On the 19th January 2017 I made an email appeal to the Claimant against the parking charge on the grounds that the signage at the site was inadequate, particularly given the recent change in parking restrictions. I never received a response to this appeal. (see exhibit 4)

1.9. On around the 24th of February 2017 I received a ‘Notice to Keeper’ from the Claimant (exhibit 5) regarding the same ‘Unauthorised Parking’ charge. This notice states that the Claimant did not know who the driver of the vehicle was at the time of the parking incident and that they had obtained my details as keeper of the vehicle from the DVLA. Given the fact that I had admitted to being the driver of the vehicle in my appeal to the Claimant (to which I had yet to receive a response), and that a request for my personal information from the DVLA would have been unlawful under the circumstances, I presumed this communication to be an adminstrative error on behalf of the Claimant.

1.10. I heard nothing further from the Claimant until 19th April 2017 when I received a letter from their agents, Gladstones Solicitors (a well-known serial litigant and ‘roboclaimer’), demanding money and threatening court action (exhibit 6). I responded with a letter to both the Claimant and Gladstones outlining why I felt I was I was not liable for the ‘parking charge’, requesting evidence of landowner authority to issue such a charge, and suggesting mediation via the Consumer Ombudsman. (exhibit 7)

1.11. On 5th May 2017 I received a letter from the Claimant saying that they had instructed Gladstones to halt proceedings against me pending the outcome of a ‘non-standard appeal’ to the Independent Appeals Service (IAS). The Claimant also referred to ‘ParkingEye vs Beavis’ and ‘Vine vs Waltham’ as justification for the parking charge. (exhibit 8) The claimant refused to provide any evidence of landowner authority for issuing parking charges, citing ‘client confidentiality’.

1.12. On 24th May 2017 I wrote to the Claimant explaining that I didn’t feel the IAS could be considered ‘independent’ as it is owned and operated by William Hurley and John Davies, also the owners of Gladstones Solictors who had already been instructed by the Claimant to issue court proceedings against me. As this represented a clear conflcit of interest I, again, suggested we seek mediation via the Consumer Ombudsman instead. (exhibit 9)

1.13. A few weeks after this (the letter is not dated) I received a letter from The Claimant saying that they would not deal with any other mediation service other than the IAS.

1.14. On 6th September 2017 I received a Claim Form from the County Court Business Centre instructing me that Gladstones Solictors were issuing proceedings against me on behalf of the Claimant. I never received a ‘Letter Before Claim’ or any other communication from the Claimant or Gladstones warning me that court action was forthcoming that post-dates their communication telling me that proceedings had been halted.

2. Forbidding Signage

2.1 I understand from correspondence with the Claimant that the Claimant’s case relies upon the signage at the site (exhibit 10) constituting a ‘contract’ between myself and the Claimant. The ‘breach of terms’ on the Particulars Of Claim presumably refers to the supposed ‘contract’ formed by this signage. I do not see how this signage can consitute a ‘contract’ between myself and the Claimant as it would have been impossible for me to derive any benefit from this ‘contract’ without breaching its terms.

2.2 The signage and its wording at this site is almost exactly the same as the signage in the case of ‘Parking Control Management v Bull’ (exhibit 11) in which the Judge found that it was ‘impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway.’ and that therefore any charges made on the basis of said signage would be damages for trespass and must constitute reparations for actual loss.

2.3 The signage at the site is also very similar to the signage in the cases of ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ in which it was ruled that, if any contractual arrangement could be implied by such signage, then it only applied to vehicles which were ‘authorised’ to park and therefore charges could not be made on a contractual basis for vehicles that were not ‘authorised’ to park. NOTE: I ONLY HAVE PRANSKSTER BLOG LINKS TO BACK THIS UP, NO TRANSCRIPTS, IS THIS OK?

2.4 Both the PCN and Notice to Keeper I was issued by the Claimant state the reason for the disputed charge as being ‘Unauthorised Parking’. I cannot be seen to have entered into a contract for something I was not authorised to do.

2.5 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 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. No such offer exists in this case and therefore there is no contractual basis for this charge. (DO I NEED TRANSCRIPT REFERENCE HERE?)

3. Inadequate Signage

3.1 Another key factor in ‘ParkingEye vs Beavis’ was that the relevant signage was clear and found to adhere to the standards laid out by relevant accredited parking operator’s code of practice. In this case the accredited parking operator is the Independent Parking Comittee (IPC) and the signage fails to adhere to their standards (exhibit 11) on numerous counts.

3.2 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the site in question and one can see from the photographs that I would not have passed any signage indicating I was entering private land.

3.3 The IPC guidelines state that signage should include a very large ‘P’ to alert the motorist to the fact that said signage relates to parking restrictions. There is no large ‘P’, or even a small ‘P’ on the signage in this case.

3.4 The IPC guidelines state that text on signage ‘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.’ The text on the signage, particularly that which refers to ‘contractual terms’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read.

3.5 The IPC guidelines state that signage that is intented to form a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving as it is mounted on a pole at least 7ft high, and when another vehicle is already parked in front of the signage (as was the case here) it is literally impossible to read whilst parking.

3.5 The IPC guidelines state that ‘Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.’ The parking terms had recently changed here and yet there was not, nor had there ever been, additional signage informing visitors that a change of restrictions was in place.

3.6 The most obvious signage at the site was not the signage installed by the Claimant, but a sign outside the Co-op in Co-op branded colours that states ‘This unloading bay is reserved for the sole use of Co-op deliveries only’. (exhibit 12) This signage was much larger than the Claimant’s signage and in a much clearer font, yet did not reference any kind of ‘contract’, ‘parking charge’ or parking terms displayed elsewhere. This signage implies that the ‘old’ restrictions were still in place and that the lay-by in question was owned by the Co-op.

4. Consumer Rights

4.1 The signage at the site does not carry the information required by the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.

4.2 Event if a contract were deemed to exist between myself and the Claimant, the fact that I explained to the Claimant’s operative in no uncertain terms that I was unaware of any change in parking restrictions and my offer to remove my vehicle immediately to avoid any kind of ‘charge’ should be taken as a ‘clear statement setting out the decision to cancel the contract.’ as defined by the act in Part 3, 32, (3)a.

5. Landowner Authority

4.1 Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have they authority to do this.

6. Additional Costs

5.1 The Particulars of Claim includes £60 over and above the original ‘parking charge’. I have no idea what these charges refer to as there appears to be no contractual basis for them, even if one were to take the Claimants somewhat far-fetched view as to what constitutes a ‘contract’ into account. The Claimant is put to strict proof that these additional charges are justified.

5.2 The Particulars of Claim include £50 for ‘solicitors costs’ yet all I have received from the Claimant’s solicitors are automated letters. The Claimant is put to strict proof that these ‘solicitors costs’ are justified.

KeithP

2.2... "impossible to construct out of this" ??

4.1. do you believe you have the right to cancel under CCRs?
I would suggest the if a contract was in place it was for provision of a service - provision of parking facilities.
By parking it could be deemed that the service was being supplied therefore the opportunity to cancel has passed.
Also it is not a distance or off premises sale either.
All I'm saying here is that be sure the 'right to cancel' is applicable.

muleskinner

KeithP wrote: »

2.2... "impossible to construct out of this" ??

Hi - thanks for input. I've quoted this verbatim from the transcript of the case - just double-checked it!

KeithP wrote: »

4.1. do you believe you have the right to cancel under CCRs?
I would suggest the if a contract was in place it was for provision of a service - provision of parking facilities.
By parking it could be deemed that the service was being supplied therefore the opportunity to cancel has passed.
Also it is not a distance or off premises sale either.
All I'm saying here is that be sure the 'right to cancel' is applicable.

I think there's an argument that this is a 'distance contract', I think this was from a case put forward by the prankster...

A ‘distance contract’ is defined as

‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’

This would clearly be defined as an organised service-provision scheme (for parking), the contract is concluded without the simultaneous physical presence of the trader and the consumer and
there is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

Right of cancellation does also apply to service contracts, according to Which anyway, here's what they have to say about it...


Your right to cancel You have 14 days from entering into a service contract in which you can cancel it.

The trader shouldn’t start providing the service before the 14 day cancellation period has ended, unless you have requested this.

If you request a service starts straightaway In this instance you will still have the right to cancel, but you must pay for the value of the service that is provided up to the point you cancel.

For example, if you buy a service like gym membership and start using the gym and then change your mind within this 14 day time period, you will be refunded but could be charged for the amount of gym time you used.

If the service is provided in full within 14 days The right to cancel can be lost during the cancellation period if the service is provided in full before the 14 days elapses.


...so if this is the case I should be liable for the amount of time I was parked. According to the signage the 'charge' is for a 24 hour period so I should be liable at the most for five minutes of that which works out to around 20p!

muleskinner

Witness Statement

1. Sequence Of Events
1.1 I am xxxx xxxxxx, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant’s Solicitors.

1.2. This claim refers to a parking incident in an unmarked lay-by outside the co-op in Bradford-on-Avon. For all intents and purposes this bay appears either to be part of the public highway or to belong to the Co-op (exhibit 1).

1.3. Historically there have been no parking restrictions in this bay. It has been marked simply ‘Loading Only’ (see exhibit 2 from August 2016) and Co-op customers were always told it was permissable to park there for short periods if on Co-op business.

1.4. On the 7th January 2017 I parked my vehicle in said lay-by, as I was accustomed to do, for the purposes of buying groceries from the Co-op and delivering a package to the Post Office there. I did not see anything at the site to make me aware of any change in parking restrictions.

1.5. After a period of time, which I estimate to be less than five minutes, I noticed a parking attendant (the Claimant’s representative) approach my vehicle with the clear intention of issuing some kind of ticket.

1.6. I returned to my vehicle immediately and explained to the Claimant’s representative that I had no idea that I was violating any kind of parking restrictions and that I would remove my vehicle immediately if I was. The Claimant’s representative said that he would have to issue me with a Parking Charge Notice (PCN) and that I would have to remove my vehicle. I estimate this exchange to have lasted around two minutes.

1.7. After this exchange the Claimant’s representative took pictures of my vehicle and issued me with a PCN (exhibit 3) that is the subject of this claim. The PCN states that the charge is for ‘unauthorised parking’ and that I ‘parked on private property in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site’.

1.8. On the 19th January 2017 I made an email appeal to the Claimant against the parking charge on the grounds that the signage at the site was inadequate, particularly given the recent change in parking restrictions. I never received a response to this appeal. (see exhibit 4)

1.9. On around the 24th of February 2017 I received a ‘Notice to Keeper’ from the Claimant (exhibit 5) regarding the same ‘Unauthorised Parking’ charge. This notice states that the Claimant did not know who the driver of the vehicle was at the time of the parking incident and that they had obtained my details as keeper of the vehicle from the DVLA. Given the fact that I had admitted to being the driver of the vehicle in my appeal to the Claimant (to which I had yet to receive a response), and that a request for my personal information from the DVLA would have been unlawful under the circumstances, I presumed this communication to be an adminstrative error on behalf of the Claimant.

1.10. I heard nothing further from the Claimant until 19th April 2017 when I received a letter from their agents, Gladstones Solicitors (a well-known serial litigant and ‘roboclaimer’), demanding money and threatening court action (exhibit 6). I responded with a letter to both the Claimant and Gladstones outlining why I felt I was I was not liable for the ‘parking charge’, requesting evidence of landowner authority to issue such a charge, and suggesting mediation via the Consumer Ombudsman. (exhibit 7)

1.11. On 5th May 2017 I received a letter from the Claimant saying that they had instructed Gladstones to halt proceedings against me pending the outcome of a ‘non-standard appeal’ to the Independent Appeals Service (IAS). The Claimant also referred to ‘ParkingEye vs Beavis’ and ‘Vine vs Waltham’ as justification for the parking charge. (exhibit 8) The claimant refused to provide any evidence of landowner authority for issuing parking charges, citing ‘client confidentiality’.

1.12. On 24th May 2017 I wrote to the Claimant explaining that I didn’t feel the IAS could be considered ‘independent’ as it is owned and operated by William Hurley and John Davies, also the owners of Gladstones Solictors who had already been instructed by the Claimant to issue court proceedings against me. As this represented a clear conflcit of interest I, again, suggested we seek mediation via the Consumer Ombudsman instead. (exhibit 9)

1.13. A few weeks after this (the letter is not dated) I received a letter from The Claimant saying that they would not deal with any other mediation service other than the IAS.

1.14. On 6th September 2017 I received a Claim Form from the County Court Business Centre instructing me that Gladstones Solictors were issuing proceedings against me on behalf of the Claimant. I never received a ‘Letter Before Claim’ or any other communication from the Claimant or Gladstones warning me that court action was forthcoming that post-dates their communication telling me that proceedings had been halted. I consider this unreasonable and a failure to comply with court protocol.

2. No Contract Exists

2.1 I understand from correspondence with the Claimant that the Claimant’s case relies upon the signage at the site (exhibit 10) constituting a ‘contract’ between myself and the Claimant as per ParkingEye vs Beavis. The ‘breach of terms’ on the Particulars Of Claim presumably refers to the supposed ‘contract’ formed by this signage.

2.2 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 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 has many references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.

2.3 There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of
free parking‘ and no conceivable way I could have benefitted from this alleged ‘contract’ without breaching its terms.

2.4 The very act of entering into this alleged ‘contract’ (parking) constitues a breach of its terms, therefore making it impossible to perform.

2.5 Both the PCN and Notice to Keeper I was issued by the Claimant state the reason for the disputed charge as being ‘Unauthorised Parking’. I cannot be seen to have entered into a contract for something I was not ‘authorised’ to do.

2.6 The signage and its wording at this site is almost exactly the same as the signage in the case of
‘Parking Control Management v Bull’ (exhibit 11) in which the Judge found that it was ‘impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway.’ and that therefore any charges made on the basis of said signage would be damages for trespass and must constitute reparations for actual loss.

2.7 The signage at the site is also very similar to the signage in the cases of ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ in which it was ruled that, if any contractual arrangement could be implied by such signage, then it only applied to vehicles which were ‘authorised’ to park and therefore charges could not be made on a contractual basis for vehicles that were not ‘authorised’ to park. NOTE: I ONLY HAVE PRANSKSTER BLOG LINKS TO BACK THIS UP, NO TRANSCRIPTS, IS THIS OK?

3. Inadequate Signage

3.1 A key factor in ‘ParkingEye vs Beavis’ was that the relevant signs were ‘large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature’ and ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here.

3.2 In‘Vine v London Borough of Waltham Forest’ the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. In this case there was no sign adjacent to my vehicle, I had not passed any signs to park, and no signs in the vicinity could possibly be read from my vehicle.

3.3 A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice.

3.4 In this case the signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The Independent Parking Comittee (IPC).

3.4.1 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the site in question and one can see from the photographs that I would not have passed any signage indicating I was entering private land.

3.4.2 The IPC guidelines state that signage should include a very large ‘P’ to alert the motorist to the fact that said signage relates to parking restrictions. There is no large ‘P’, or even a small ‘P’ on the signage in this case.

3.4.3 The IPC guidelines state that text on signage ‘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.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read and impossible to read from a vehicle.

3.4.4 The IPC guidelines state that signage that is intended to form a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving as it is mounted on a pole at least 7ft high, and when another vehicle is already parked in front of the signage (as was the case here), it is literally impossible to read whilst parking.

3.4.5 The IPC guidelines state that ‘Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.’ The parking terms had recently changed here and yet there was not, nor had there ever been, additional signage informing visitors that a change of restrictions was in place.

3.4.6 The IPC guidelines (14) state ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’. Given the timings involved, the balance of probability strongly suggests that the Claimant’s representative watched me park and leave my vehicle. Not to warn me that leaving my vehicle would potentially incur a parking charge, particularly when the parking restrictions had recently changed, in my opinion constitutes ‘predatory tactics’ and a neglect of their duty to mitigate loss.

3.4.7 The IPC guidelines (15) state ‘Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.’ No specific time is given though (15.2) specifies a minimum period of ten minutes for leaving the site. I do not consider the time I was given (less than five minutes) adequate time to find, read and assess the signage on site, particularly given the confusing and contradictory nature of said signage (see 3.5). It is certainly not enough time to enter the Co-op, find a member of staff and ask for clarification on the parking restrictions.

3.5 The most obvious signage at the site was not the signage installed by the Claimant, but a sign outside the Co-op in Co-op branded colours that states ‘This unloading bay is reserved for the sole use of Co-op deliveries only’. (exhibit 12) This signage was much larger than the Claimant’s signage and in a much clearer font, yet did not reference any kind of ‘contract’, ‘parking charge’ or parking terms displayed elsewhere. if anything, this signage implies that the ‘old’ restrictions were still in place and that the lay-by in question was owned by the Co-op.

4. Consumer Rights

4.1 The signage at the site does not carry the information required by the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.

4.2 Event if a contract were deemed to exist between myself and the Claimant, the fact that I explained to the Claimant’s operative in no uncertain terms that I was unaware of any change in parking restrictions and my offer to remove my vehicle immediately to avoid any kind of ‘charge’ should be taken as a ‘clear statement setting out the decision to cancel the contract.’ as defined by the act in Part 3, 32, (3)a.

5. Landowner Authority

4.1 Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have they authority to do this.

6. Additional Costs
5.1 The Particulars of Claim include £60 over and above the original ‘parking charge’. I have no idea what these charges refer to as there appears to be no contractual basis for them, even if one were to take the Claimants somewhat far-fetched view as to what constitutes a ‘contract’ into account. The Claimant is put to strict proof that these additional charges are justified.

5.2 The Particulars of Claim include £50 for ‘solicitors costs’ yet all I have received from the Claimant’s solicitors are automated letters. The Claimant is put to strict proof that these ‘solicitors costs’ are justified.

muleskinner

Couple more small edits made to the above. Not reposting the entire thing!

I'm hoping the lack of feedback means this is generally OK but I know the amount of traffic here means posts disappear from view pretty fast.

Herzlos

Loadsofchildren123 wrote: »

I think the duty to mitigate loss applies in every case, including where the penalty rule is disengaged. Worth arguing even if it's rejected. It's pretty shoddy behaviour and entrapment.

You could argue that if it a genuine charge and not entrapment, that the warden should be asking for the money directly from the driver, and saving all the admin costs associated with DVLA lookup. I guess you could argue that if the warden was on site he should have made sure the driver agreed to the T&C before they wandered off.

No other business model has someone watching a person doing something to bill them later on the basis of a sign they may or may not have read. It also kind of defeats the deterrent point.

Herzlos

I'd make a bigger deal out of "The PCN states that the charge is for ‘unauthorised parking’ and that I ‘parked on private property in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site’" since it can't be both. It's either authorized or it's not.

KeithP

4.2. the first word should be "Even".

muleskinner

Thanks for all your input. I have made some edits below...

- Fixed a couple of typos
- Added more about the contradictory nature of the charge ('unauthorised parking', 'consideration for parking', 'breach of terms')
- Added a para on Claimant's duty to mitigate loss with reference to VCS vs Ibbotson
- Clarified the 'consumer rights' section a bit

...please let me know if you've any more feedback.

I am a bit unsure as to what evidence to include for cases for which I don't have transcripts. Is it OK to provide Prankster blog links to summaries for these? Cases in question are Horizon Parking v Mr J. Guildford and ES Parking Enforcement v Ms A. Manchester.

=====

Witness Statement

1. Sequence Of Events
1.1 I am xxxx xxxxxx, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant’s Solicitors.

1.2 The Claimant has been extremely unclear as to what the ‘parking charge’ in question refers to, referring to it on separate occasions as a charge for ‘unauthorised parking’, a ‘consideration for parking’ and a charge for ‘breach of terms’ - all very different things. This makes is very difficult to focus my defence and I apologise if, as a result, this statement seems rather long-winded.

1.3. This claim refers to a parking incident in an unmarked lay-by outside the co-op in Bradford-on-Avon. For all intents and purposes this bay appears either to be part of the public highway or to belong to the Co-op (exhibit 1).

1.4. Historically there have been no parking restrictions in this bay. It has been marked simply ‘Loading Only’ (see exhibit 2 from August 2016) and Co-op customers were always told it was permissable to park there for short periods if on Co-op business.

1.5. On the 7th January 2017 I parked my vehicle in said lay-by, as I was accustomed to do, for the purposes of buying groceries from the Co-op and delivering a package to the Post Office there. I did not see anything at the site to make me aware of any change in parking restrictions.

1.6. After a period of time, which I estimate to be less than five minutes, I noticed a parking attendant (the Claimant’s representative) approach my vehicle with the clear intention of issuing some kind of ticket.

1.7. I returned to my vehicle immediately and explained to the Claimant’s representative that I had no idea that I was violating any kind of parking restrictions and that I would remove my vehicle immediately if I was. The Claimant’s representative said that he would have to issue me with a Parking Charge Notice (PCN) and that I would have to remove my vehicle. I estimate this exchange to have lasted around two minutes.

1.8. After this exchange the Claimant’s representative took pictures of my vehicle and issued me with a PCN (exhibit 3) that is the subject of this claim. The PCN states that the charge is for ‘unauthorised parking’ and that I ‘parked on private property in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site’. This itself is contradictory as I cannot have entered into an agreement to do something that I was not ‘authorised’ to do, parking is either ‘authorised’ or it isn’t.

1.9. On the 19th January 2017 I made an email appeal to the Claimant against the parking charge on the grounds that the signage at the site was inadequate, particularly given the recent change in parking restrictions. I never received a response to this appeal. (see exhibit 4)

1.10. On around the 24th of February 2017 I received a ‘Notice to Keeper’ from the Claimant (exhibit 5) regarding the same ‘Unauthorised Parking’ charge. This notice states that the Claimant did not know who the driver of the vehicle was at the time of the parking incident and that they had obtained my details as keeper of the vehicle from the DVLA. Given the fact that I had admitted to being the driver of the vehicle in my appeal to the Claimant (to which I had yet to receive a response), and that a request for my personal information from the DVLA would have been unlawful under the circumstances, I presumed this communication to be an adminstrative error on behalf of the Claimant.

1.11. I heard nothing further from the Claimant until 19th April 2017 when I received a letter from their agents, Gladstones Solicitors (a well-known serial litigant and ‘roboclaimer’), demanding money and threatening court action (exhibit 6). I responded with a letter to both the Claimant and Gladstones outlining why I felt I was I was not liable for the ‘parking charge’, requesting evidence of landowner authority to issue such a charge, and suggesting mediation via the Consumer Ombudsman. (exhibit 7)

1.12. On 5th May 2017 I received a letter from the Claimant saying that they had instructed Gladstones to halt proceedings against me pending the outcome of a ‘non-standard appeal’ to the Independent Appeals Service (IAS). The Claimant also referred to ‘ParkingEye vs Beavis’ and ‘Vine vs Waltham’ as justification for the parking charge. (exhibit 8) The claimant refused to provide any evidence of landowner authority for issuing parking charges, citing ‘client confidentiality’.

1.13. On 24th May 2017 I wrote to the Claimant explaining that I didn’t feel the IAS could be considered ‘independent’ as it is owned and operated by William Hurley and John Davies, also the owners of Gladstones Solictors who had already been instructed by the Claimant to issue court proceedings against me. As this represented a clear conflcit of interest I, again, suggested we seek mediation via the Consumer Ombudsman instead. (exhibit 9)

1.14. A few weeks after this (the letter is not dated) I received a letter from The Claimant saying that they would not deal with any other mediation service other than the IAS.

1.15. On 6th September 2017 I received a Claim Form from the County Court Business Centre instructing me that Gladstones Solictors were issuing proceedings against me on behalf of the Claimant. I never received a ‘Letter Before Claim’ or any other communication from the Claimant or Gladstones warning me that court action was forthcoming that post-dates their communication telling me that proceedings had been halted. I consider this unreasonable and a failure to comply with court protocol.

2. No Contract Exists
2.1 I understand from correspondence with the Claimant that the Claimant’s case relies upon the signage at the site (exhibit 10) constituting a ‘contract’ between myself and the Claimant as per ParkingEye vs Beavis. The ‘breach of terms’ on the Particulars Of Claim presumably refers to the supposed ‘contract’ formed by this signage.

2.2 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 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, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.

2.3 There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of free parking‘ and no conceivable way I could have benefitted from this alleged ‘contract’ without breaching its terms.

2.4 The very act of entering into this alleged ‘contract’ (parking) constitues a breach of its terms, therefore making it impossible to perform.

2.5 Both the PCN and Notice to Keeper I was issued by the Claimant state the reason for the disputed charge as being ‘Unauthorised Parking’. I cannot be seen to have entered into a contract for something I was not ‘authorised’ to do.

2.6 The signage and its wording at this site is almost exactly the same as the signage in the case of ‘Parking Control Management v Bull’ (exhibit 11) in which the Judge found that it was ‘impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway.’ and that therefore any charges made on the basis of said signage would be damages for trespass and must constitute reparations for actual loss.

2.7 The signage at the site is also very similar to the signage in the cases of ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ in which it was ruled that, if any contractual arrangement could be implied by such signage, then it only applied to vehicles which were ‘authorised’ to park and therefore charges could not be made on a contractual basis for vehicles that were not ‘authorised’ to park. NOTE: I ONLY HAVE PRANSKSTER BLOG LINKS TO BACK THIS UP, NO TRANSCRIPTS, IS THIS OK?

3. Inadequate Signage
3.1 A key factor in ‘ParkingEye vs Beavis’ was that the relevant signs were ‘large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature’ and ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here.

3.2 In‘Vine v London Borough of Waltham Forest’ the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. In this case there was no sign adjacent to my vehicle, I had not passed any signs to park, and no signs in the vicinity could possibly be read from my vehicle.

3.3 A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice.

3.4 In this case the signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The Independent Parking Comittee (IPC).

3.4.1 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the site in question and one can see from the photographs that I would not have passed any signage indicating I was entering private land.

3.4.2 The IPC guidelines state that signage should include a very large ‘P’ to alert the motorist to the fact that said signage relates to parking restrictions. There is no large ‘P’, or even a small ‘P’ on the signage in this case.

3.4.3 The IPC guidelines state that text on signage ‘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.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read and impossible to read from a vehicle.

3.4.4 The IPC guidelines state that signage that is intended to form a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving as it is mounted on a pole at least 7ft high, and when another vehicle is already parked in front of the signage (as was the case here), it is literally impossible to read whilst parking.

3.4.5 The IPC guidelines state that ‘Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.’ The parking terms had recently changed here and yet there was not, nor had there ever been, additional signage informing visitors that a change of restrictions was in place.

3.4.6 The IPC guidelines (14) state ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’. Given the timings involved, the balance of probability strongly suggests that the Claimant’s representative watched me park and leave my vehicle. There is anecdotal evidence of them doing exactly this. Not to warn me that leaving my vehicle would potentially incur a parking charge, particularly when the parking restrictions had recently changed, in my opinion constitutes ‘predatory tactics’.

3.4.7 The Claimant and their representative also have a duty to mitigate loss. In the case of ‘Vehicle Control Services vs Ibbotson’ (which was won by the motorist) the judge severely castigates the Claimant for not making the Defendant aware of the terms of parking at the site when they could have easily done so. The Claimant’s representative could simply have made me aware of the terms of parking and, in the unlikely event that I agreed to them, collected payment from me directly. This would have saved all the costs involved with DVLA lookup, solicitor’s letters and court fees and better fulfilled their (presumed) obligation to keep the area free from parked vehicles.

3.4.8 The IPC guidelines (15) state ‘Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.’ No specific time is given though (15.2) specifies a minimum period of ten minutes for leaving the site. I do not consider the time I was given (less than five minutes) adequate time to find, read and assess the signage on site, particularly given the confusing and contradictory nature of said signage (see 3.5). It is certainly not enough time to enter the Co-op, find a member of staff and ask for clarification on the parking restrictions.

3.5 The most obvious signage at the site was not the signage installed by the Claimant, but a sign outside the Co-op in Co-op branded colours that states ‘This unloading bay is reserved for the sole use of Co-op deliveries only’. (exhibit 12) This signage was much larger than the Claimant’s signage and in a much clearer font, yet did not reference any kind of ‘contract’, ‘parking charge’ or parking terms displayed elsewhere. if anything, this signage implies that the ‘old’ restrictions were still in place and that the lay-by in question was owned by the Co-op.

4. Consumer Rights
4.1 If a contract were deemed to exist between myself and the Claimant it would, under the terms of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), be defined as a ‘distance contract’. As ‘distance contract’ is defined as ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’.

4.2 As a ‘distance contract’, the signage at the site does not carry the information required by the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.

4.3 As the signage does not carry the information required as specified in 4.2 (above) I have the right to cancel the contract as specified by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13) clause 31 ‘Cancellation period extended for breach of information requirement’.

4.4 Even if a contract were deemed to exist between myself and the Claimant, the fact that I explained to the Claimant’s operative in no uncertain terms that I was unaware of any change in parking restrictions and my offer to remove my vehicle immediately to avoid any kind of ‘charge’ should be taken as a ‘clear statement setting out the decision to cancel the contract.’ as defined by the act in Part 3, 32, (3)a.

4.4 Whilst it might, at a stretch, be reasonable to expect me to pay for any parking services utilised up to the point of cancellation, this respresents five minutes of a 24 hour period and would therefore amount to approximately 20p.

5. Landowner Authority
4.1 Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have they authority to do this, and that the terms and conditions of parking they impose at the site are in line with what they have been authorised to do.

6. Additional Costs
5.1 The Particulars of Claim include £60 over and above the original ‘parking charge’. I have no idea what these charges refer to as there appears to be no contractual basis for them, even if one were to take the Claimants somewhat far-fetched view as to what constitutes a ‘contract’ into account. The Claimant is put to strict proof that these additional charges are justified.

5.2 The Particulars of Claim include £50 for ‘solicitors costs’ yet all I have received from the Claimant’s solicitors are automated letters. The Claimant is put to strict proof that these ‘solicitors costs’ are justified.