Gladstones - Technical defence against PCM

Kas22

DoaM wrote: »

Post #113 - it even says that in what you quoted, and even mentions Acquiescence in post #113 itself.

Sorry! My bad :silenced:

Kas22

Just received the WS from Gladstones who have said:


The assumption is that their Client is not attending the hearing and therefore are kindly requesting that the notice be treated as a notice pursuant to CPR 27.9. On some occasions their Client may wish to attend and will do so.



WS - Annie Clark is the representative from Gladstones for the Client.
She says:


1. Exhibit to this Witness Statement are the following documents which my Company wishes to rely upon;
i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as 'the Relevant Land':
ii) The Sign ('the Contract');
iii) The Site Plan;
iv) Notices;
v) photographs of the incident.

2. The Defendant is liable for a parking charge related to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are the details of the parking charge:
[parking charge details]

The Defence

3. The signs are clean and unambiguous. The sign states, "Vehicles must be parked with a valid parking permit fully displayed within the windscreen and parked wholly within the confines of a marked bay appropriate for the permit on display...". As can be seen from the photographs exhibited to this statement the Defendant's vehicle was parked outside of a marked bay on paved land, which constitutes a restricted area therefore the charge was issued correctly.

4. The Claim is issue via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:-

i) The date of the charge;
ii) The vehicle registration number;
iii) The amount outstanding
iv) That is relates to parking charges; and
v) That it is debt.

5. I refer to paragraph 5.1A of Practice Direction 7E which states that "the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form".

6. The Defendant alleges my Company is a serial issues, this is denied. The Defendant parked in a manner contravening the term and conditions of the signage on the Relevant Land therefore the charge was correctly issued ad my Company are entitles to recover unpaid charges.

7. A Letter Before Claim was sent to the Defendant, which contained:-
i) The date of the charge;
ii) The Parking Charge Notice Number;
iii) The location of the charge;
iv) The amount outstanding;
v) The Claimant; and
vi) That the balance relates to unpaid parking charge.

if there has been any minor deviation from the Civil Procedure Rules then it is (or would be) within the tolerances provided therein whereby the court is required to interpret any provision having regards to the 'overriding objective', namel to deal with matters in a just, proportionate and cost-effective way (rules .1.1 and 1.2)

8. The Defendant's opinion on any alleged conflict of interst with a non-party to this claim is irrelevant and therefore not the subject matter of the claim before us. Gladstones Solicitors and the international Parking Community used to have the same Directors, however this is no longer the case, and in an event they remained separate in its entirety.

9. The Defendant suggest there was no contract. The rules of interpretation require simply that the parties knew of their obligations to one-another. Th Defendant was offered to use the Land and thereafter either follow the rules and park for free or in breach of the rules agree to pay £100.

The rules here just so happen to be tha to park, "Vehicles must be parked with a valid parking permit fully displayed within the windscreen and parked wholly within the confines of a marked bay appropriate for the permit on display..."

10. In the case of Alder v Moore (1961) The court concluded that one should consider the obligations imposed by the agreement, not the terminology used i.e. the agreement's substance, not form.

11. The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye case, as the particular parking rules were different, the rule breached was that motorists must leave the site within 2 hours, whereas here, as set out above, the rule was "Vehicles must be parked with a valid parking permit fully displayed within the windscreen and parked wholly within the confines of a marked bay appropriate for the permit on display...". In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver's actions as prescribed therein.

12. The court may conclude that the Land is manages as follows; the Claimant grants a contractual license to all; this licence allows anyone permission to be on the Land. This is inferred by the nature of the land and the lack of any general prohibition of entry on the signage. In this regard, the Defendant (as were all the motorists) was offered to comply with the normal conditions (as clear on the sign), or park otherwise than in accordance with the normal conditions and incur a £100 charge. The acceptance was at the point the Defendant decided to park, having rad the sign, and his consideration was the promise to pay £100 for the privilege of parking outside the normal conditions. The Claimant's consideration is the provision of parking services.

13. I refer to the Court to Judge Hegarty's comments in ParkingEye v Somerfield (2011) that "IF this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty, even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park".

14. Alternatively; it could be concluded that, any person can use the Land provided they do not exceed the licensed activity set out on the sign and in failing to comply with the license granted to them, they in turn agree to the Claimant's entirely distinct offer from that license which is 'to park otherwise than in accordance with the license for a charge of £100'.

15. The signage at the site is clearly visible and the information on the signage informs the driver o th parking conditions at the location. Signage is prominent thoughout th parking area. Signage location, size, content and font has been audited and approved by the International Parking Community ("the IPC"). As is evidence by the site plan exhibit to this statement there is sufficient signage on the Relevant Land. It is the driver's responsibility, to check for signage and check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document. By parking in the manner in which they did, the charge was properly incurred.

16. Further, as can be seen from the photographs exhibited to this statement the Defendant's vehicle was parked within close proximity of the signage. The sign was displayed on the fence in front of the Defendant's vehicle (LIE!). Therefore the Defendant ought to have seen the signage and been aware of the terms of th Relevant Land.

The Current Debt

17.In vie of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.

18. My Company is an Accredited Operator of the International Parking Community (IPC) who prescribes a maximum charge of £100. The Code of Practice states:

"Parking charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/ or other documentation.

Where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have been initiated."

19. In view of the Defendant not payin the charge within the initial 28 days allowed or the further 28 days allowed after Notice to Keeper has been sent, the parking charge has become overdue and a reasonable sum of £60 has been added.

20. The Sign states the prescribed charge for failing to comply with the terms is £100, however it also specifies "Where a parking charge becomes due an application may be made to the DVLA for the keeper's details. Non-payment will result in additional charges which will be added o the value of the charge and for which the driver will be liable on an indemnity basis." Further the letter Before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be issued. Due to the Defendant not paying the charge the matter was passed to my Company's legal representative's, Gladstones Solicitors Ltd, ho were instructed to commence legal proceedings. The potential additional costs mentioned above are now sought.

21. The debts has, as a result of this referral risen as my Company's staff have spent time and material facilitating the recovery of this debt. This time could have been better spent on other elements of my Company's business. My company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant's breach and as such ask that this element of the claim be awarded as damage. The costs claimed are a pre-determined and nominal contribution to the actual losses.

Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

In the document they have also included a contract between PCM and the Managing agent, copy of the sign, signage map locations and images, letters to residents that the parking was being introduced (as a home owner I didn't receive any letters), and all the back and forth letters sent by myself and images of the parked vehicle.


Any thoughts on the above?

Coupon-mad

Same as ever, same as all Gladstones template WS.

Have you not yet filed & served your WS and evidence? If so, pull theirs apart as part of your own WS. Search the forum for the stupid cases they have mentioned, like Alder v Moore and you will find all this has been done before loads of times over.

Have you got the 2 transcripts I mentioned (Google them and look for a link to the actual court transcripts).

Kas22

Coupon-mad wrote: »

Same as ever, same as all Gladstones template WS.

Have you not yet filed & served your WS and evidence? If so, pull theirs apart as part of your own WS. Search the forum for the stupid cases they have mentioned, like Alder v Moore and you will find all this has been done before loads of times over.

Have you got the 2 transcripts I mentioned (Google them and look for a link to the actual court transcripts).

I'm currently finalising mine hoping to have it sent off by the end of the week. I had a look at the two cases you mentioned 'Bulstrode v Lambert' and 'Moncrieff v Jamieson'

https://publications.parliament.uk/pa/ld200607/ldjudgmt/jd071017/jamie.pdf

Am yet to find a court transcript for Bulstrode

Kas22

So I cleaned up my defence, added the previous transcripts with as much relevance and context, and had it sent off last week.

I hadn't added a skeleton argument, but not sure how relevant it would have been? Would that have taken precedence over the WS with the judge?

System

Am yet to find a court transcript for Bulstrode

Held – (i) On the true construction of the reservation in the conveyance, the plaintiff had a right of way over the whole yard for the purposes of his business, including the right to enter with goods vehicles of any size appropriate to pass down the yard, and that right was not affected by the fact that there was a double gate, only six feet wide, at the entrance to the yard at the time of the conveyance; the failure to exercise the right under the grant for several years did not prejudice the plaintiff's right to exercise it when he found it convenient to do so: dictum of Viscount Dunedin in Keewatin Power Co Ltd v Lake of the Woods Milling Co Ltd ([1930] AC 657), applied; and, therefore, the plaintiff was entitled to bring furniture vans and other heavy vehicles on to the yard as far as they could go, and to transport the furniture and other chattels from the vehicles by hand past the garage into the auction mart.

https://docdro.id/kvPr0xi

Kas22

Right, my court date is soon approaching: Monday 17th.

Having read through the steps of what you must do and by when, the step-by-step post by Loadsofchildren123 says that I should send the cost schedule at least 24hrs beforehand, but further down the thread Coupon-Mad states that I should take it in with me.

Shall I do both?

nosferatu1001

Yes, they are not exclusive
You send to court and claimant before
you have your OWN copies on hand on the day.

Umkomaas

What you don't do is fail to send the cost schedule in advance, then turn up in court without a copy in your hand as well.

I can tell you exactly what the Judge will award in that eventuality - the square root of SFA.

Kas22

Right, I had my court hearing today, and the case was dismissed! I'm happy with the outcome and couldn't have done it without the help of ALL who contributed to this matter. THANK YOU!

The claimant didn't turn up, so me and the judge talked through the situation. Based on the literal interpretation, he classed it as a technical defence and stated:
"...the land the claimant only has authority to issue parking charges for, is the designated parking areas, and the defendant having parked on land not apparently designated for parking..."

I've been awarded costs too which makes the victory even sweeter.

Now, three more cases to get ready for, which I'll post on the another thread I had started a while back.

Once again, thank you all!