Claim form issued - Gladstones / HX Car Park Management LTD PCN

Coupon-mad

My son is registered visually impaired and I took him down the the car park to try and read the signage. He found the red on gold signs very difficult to read from 1ft distance due to the poor contrast.
Should I add this to my defence?
I would add it under point 4(iii) with reference to IPC signage, contrast and illumination as it specifically states that signage should avoid colour combinations which might cause difficulties for the visually impaired.

Yes I would.

Is the defendant (you)? not the driver then? Say so.

With regards to the Notice to Keeper not warning that after 28 days if the driver name address not known the keeper will become liable, should I make reference to IPC Code of Practice in relation to this also or is it ok as is, as point 1?

It is OK as it is, more important is the POFA (the law) not some Trade Body Code.

The signage displays the car park management’s name but does not specifically mention or identify itself as ‘the creditor’ or is this implied by their name being displayed on the signage?
The IPC CoP states that signs must “identify yourself as the ‘creditor’”.

Normally that should be on a Notice to Keeper (first letter) but it's insignificant detail, IMHO.

Skyboss

Thanks for the feedback Coupon-mad.

The defendant (my wife) is the registered keeper, not the driver.

Where best should I state this? at the beginning?

Thanks

Skyboss

System

Where best should I state this? at the beginning?

Yes. It's one of the strongest arguments. You might also comment about the misuse by Gladstones of the Elliott v Loake argument, a criminal case based on forensic evidence that does not apply as the keeper was not driving.

The_Deep

Have a look at their balance sheet at Companies House, very small beer indeed, a successful counter claim might do them some serious damage.

Skyboss

Thanks everyone for the help and advice.

I've updated my defence and plan to submit this later today via the MCOL portal.

Would appreciate further critique if anyone is able to give it a look over.

I wasn't sure of the correct wording to comment on the Elliott v Loake case, so might not be appropriate.

Many thanks:

Summary of Defence.

It is admitted that the Defendant is the registered keeper, not the driver of the vehicle in question.

I note that Gladstones have previously misused the case of the Elliott v Loake argument, a criminal case based on forensic evidence that does not apply as the keeper was not driving.

I request that xxxxxxxx attend as my lay representative.

On 16/05/17 the vehicle xxxxxx was parked in the xxxxxx Car Park xxxxxx whilst visiting xxxx Restaurant. Patrons of xxxxxx were are allowed free parking after 18:00hrs.

I received a letter before claim from Gladstones solicitors dated 26/07/17 on 28/07/17.

I responded to this letter 07/08/17 requesting full details of the parking charge to which they were referring. Gladstones responded with their letter dated 30/08/17 and failed to address questions such as how the parking charge had been calculated, explanation of the ‘letter before claim’ and also misunderstood other elements of my letter.

In my opinion it looks like a standard template letter reponse roughly covering the points I raised but not actually addressing them.

I responded to their letter 30/08/17 on 14/08/17 asking that they address my original points / questions and responded to their points raised in their letter 30/08/17.

I received no response to my letter 14/08/17 and received a claim form 24/09/17 with an issue date of 22/09/17.

However, the Claimant is not able to bring this claim as they have no authority on the following grounds, any one of which fully negates the Claimant’s case:

The Protection of Freedom Act 2012 Schedule 4 has not been complied with:
A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver, the keeper can only be held liable if the Claimant has fully complied with all requirements.

1. Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver.

2. Notification Letter to Keeper does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3.


3. The Notice to Keeper does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j).

4. HX Car Park Management LTD are not the lawful occupiers of the land. Absent a contract with the lawful occupier of the land being produced by the Claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this matter.


4.(i) No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.


4.(ii) It is the Defendant's case that there was no contravention of any term authorised by the landowner, regarding parking after 18:00hrs on the material date, because parking was free from that time. The Claimant is put to strict proof of their case.

5.(i) The entrance sign vaguely mentions terms and conditions but does not go on to mention all of the terms and conditions. This is contrary to the IPC Code of Practice, Schedule 1, Part E - Signage, as is the failure to state the parking charges clearly alongside the tariff list at the machine itself, in large lettering. Further, there were no signs drawing the recent change of restrictions to the attention of drivers relying upon the ‘free after 18:00hrs’ rules offered last time the family attended xxxxx restaurant.

5.(ii) The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage “Contrast and Illumination, signage - Black text on a white background or white text on a black background will provide a suitable contrast”.

5.(iii) The signage at xxxxx Car Park is in coloured pale red font on a gold background which offers a very poor contrast and therefore cannot easily be read. My son is registered partially sighted and he struggles to read the signs due to the colour used and resultant poor contrast (IPC Code of Practice, Part E, Schedule 1 - signage states that [...] “Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired”).

5.(iv) The car park operates 24/7 and has no illumination for any signage except for the sign near to the ticket machine which has inadequate indirect illumination contrary to IPC Code of Practice, Part E, Schedule 1 - Signage.

5.(v) There is no warning on signage that if a charge remains unpaid for a period of 28 days after issue then an application will be made to DVLA for the keeper’s details, contrary to IPC Code of Practice, Part E, Schedule 1 - Signage, Other signs, condition 3.

5.(vi) Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, condition 4.

5.(vii) Signage does not contain text appropriate to position and relative position of the person who is reading it, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, condition 6.



6. The vehicle registration xxxxxx was parked in xxxxxx Car Park 16/05/17 on the understanding that free parking was allowed after 18:00hrs for patrons of xxxxxx restaurant.
There was no signage or notice to the contrary, it was not immediately apparent to the defendant that there had been a change in pre-existing contract / terms & conditions. The vehicle was parked in good faith under these terms & conditions as known to the defendant (that free parking would be afforded to patrons of xxxx restaurant).
Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of xxxxx no longer apply and that charges now apply after 18:00hrs. This signage was not in place 16/05/17.
As there was no notification of the change in parking terms & conditions, a parking charge notice cannot be enforced.

7. Sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs rate (80p per hour) would cover 1 hour of parking during that time period. However, the rates change at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx. 21:00hrs.
There was no underpayment or overstay. The ticket machine does not operate properly in this instance.

8. The Claimant makes reference to Parking Eye v Beavis. The Claimant has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable unfair contract term and this case can easily be distinguished from Parking Eye v Beavis.

The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and unfair contract term .

a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”-

In this case the vehicle would have been fully entitled to park as it did had payment been made (provided the requirement to do so had been clearly brought to the motorist's attention). The above justifications are irrelevant and conspicuously absent. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise.The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made, i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pence. The charge is clearly a penalty following the judgment of the Supreme Court.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction
between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to
use the land. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
which will make them tend to comply with the two hour limit. That is afforded by the
parking charge of £85. It would not be afforded by a system of imposing a rate per
hour according to the time overstayed, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. [...]: When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, should
prohibit terms which require the payment of compensation going far beyond that
which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
6 Bing. 141 at 148:
“But that a very large sum should become immediately payable, in consequence
of the non-payment of a very small sum, and that the former should not be
considered a penalty, appears to be a contradiction in terms, the case being
precisely that in which courts of equity have always relieved, and against which
courts of law have, in modern times, endeavoured to relieve, by directing juries to
assess the real damages sustained by the breach of the agreement.”



This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the Claimant and motorist.There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner, not the Operator, may be entitled. The demanded charge is, without intellectual dishonesty, a clearly unenforceable penalty .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pence that the Operator believes should have been paid.

Skyboss

Quick question if anyone can advise.

I'm just trying to submit my defence on MCOL but I have more than 122 lines, should I remove all the blank lines? I think this will make it all difficult to read or just make it more concise and use the detail when / if it goes to court?

Thanks

KeithP

Skyboss wrote: »

Quick question if anyone can advise.

I'm just trying to submit my defence on MCOL but I have more than 122 lines, should I remove all the blank lines? I think this will make it all difficult to read or just make it more concise and use the detail when / if it goes to court?

Thanks

Have another read of Bargepole's walkthrough linked from post #2 of the NEWBIES thread.

Your answer is there. Layout, font, spacing... all in there.

Hint: send an email.

Skyboss

Thanks KeithP, had a bit of a panic when it wouldn't fit!
I've emailed the defence now and received the acknowledgement email. Just as well really as the MCOL site was experiencing problems and wouldn't let me progress through the defence submission process. (I was trying to enter the fact that I had sent the defence document via email due to size in the defence section online and then submit so that it would be registered online too but I keeps erroring).

Thanks again!

KeithP

Skyboss wrote: »

(I was trying to enter the fact that I had sent the defence document via email due to size in the defence section online and then submit so that it would be registered online too but I keeps erroring)

Do you realise that if you had managed to put that explanation in the defence box, it would've been accepted as your defence? :eek:

Bargepole's post tells you...

Do NOT put anything in the 'Defence and Counterclaim' text box, not even a full stop.

...for this very reason.

Skyboss

Oh Dear. I've just checked my claim online and there is some text saved in the defence box. I have tried to delete but it gives an error saying please enter defence details. I haven't progressed through to confirmation stage so will this still register?