Gladstones LBC help please!!

Coupon-mad

No, because of your first post here in public, from January. Don't lie.

Your wife should have been the appellant, but that ship sailed when you appealed, now be the honest driver.

hartynoll

Hi All

I am having a real problem drafting my defence, my own fault completely as I am not the RK so have to admit to being the driver.

My only defence is around the signage, the ridiculous amount of the fine, the harrassment and the roboclaim angle - is this actually enough to fight the claim?

I have been advised to send a CPR request to Gladstones, copied below but should I also include the comments posted by Couponmad previously:

"(should the case go to trial) you will include the transcript of the 2nd February 2018 Parliamentary debate as evidence for the Judge, and will provide evidence of the significant distress caused to the whole family as well as the recipient of these horrendously intrusive and unjustified demands, should this matter proceed to court. Add that you will pursue your costs on the indemnity basis, due to the unreasonable conduct and vexatious claim against a keeper with no proper evidence, no contract, and no similarity with the Beavis case to fall back on to excuse the punitive and predatory 'parking charge', now inflated with imaginary sums"?

hartynoll

Oh, and the CPR as it is is below:

Dear Sir/Madam

Re: Millennium Door and Event Security Ltd v xxx - Case No:

CPR 31.14 Request

On xxx I received the claim form in this case issued by you out of the Northampton County Court Business Centre.

I confirm having returned my acknowledgement of service to the court, in which I indicate my intention to contest all of your claim.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:
1. the contract between Millennium Door and Event Security Ltd and the landowner that assigns the right to enter into contracts with the public and make claims in their own name.
2. proof of planning permission granted for signage etc. under the Town and Country Planning Act 2007.
3. copies of the notice to driver, notice to keeper and any other correspondence from Millennium Door and Event Security Ltd & Gladstones Solicitors Limited to the defendant that they intend to rely upon in court.

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are disclosed at your earliest convenience.

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, better for you in being able to verify the document's authenticity and to provide me with a legible copy.

Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.
Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15(c), I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.
If you are unable to comply with this request within 14 days, and believe that you will never be able to comply with this request, please confirm in your response.

You are reminded that as this case is yet to be allocated to a track, CPR31:14 does apply, a refusal to comply because you 'think' at this stage you don!!!8217;t have to will be used against you in any filed defence.

nosferatu1001

CPR stands for civil procedure rules. SO it isnt a "CPR" below, it is your request being made under the CPR. However theyll refuse as CPR31 doesnt apply in small claims, from memory. Instead state you make this request in order to narrow the issues under disagreement and to comply with the overriding objectives.

Absolutely SURE its only the signs? And the other 3 usual arguments, usually around having authority?

Coupon-mad

My only defence is around the signage (yes) the ridiculous amount of the fine (no), the harrassment (no), and the roboclaim angle (no), - is this actually enough to fight the claim?

Signage can certainly be the winning point - but as for the rest of your 'points', no.

the signage was tiny and I didn't notice them when driving in.

And it looked like public highway and there were no signs/lines...it was dark...etc.

Read other defences about a Gladstones claim unclear signs (obvious forum search words).

hartynoll

Just a thought.....the sign lists #1 in T&Cs as:
Vehicles must park wholly in a marked bay

This was housing estate and I don't believe there were any 'bays' to speak of ( I will check). Can this be used in my defence against the unclear signs?

hartynoll

Hi Guru's

Please see below for my first draft of the Defence, please let me know your comments:

DEFENCE
Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
Background

2. It is admitted that at the time of the alleged infringement the Defendant was one of the named drivers vehicle registration mark XXXX XXX which is the subject of these proceedings.

3. Millennium Parking Services are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
3.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
3.2. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
3.3 The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge

4. The Claimant has at no time provided an explanation how the parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £248.46. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
4.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
4.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
4.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
4.2.2The amount demanded is 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.

Failure to set out clear parking terms
5. The Defendant relies upon ParkingEye Ltd v Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
5.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
5.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
5.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
5.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.
5.2. The Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant is a signatory, states that !!!8220;Text 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!!!8221;. The signage in the area does not meet this requirement.
5.2.1. It is therefore denied that the signs used by this claimant could have formed a fair or transparent contract with a driver or was capable of being formed in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
5.3. The signage that is present at the site is prohibitive and no contract has been offered. It states that !!!8220;Permit Holders only!!!8221; are permitted, therefore no contract can be offered to !!!8220;Non-Permit Holders!!!8221; with the displayed Terms and Conditions.

6. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent adding further unexplained charges with no evidence of how these extra charges have been calculated.
No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with inflated figures, as if they were incorporated into the small print when they were not.

7. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

8. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.
9. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
!!!8216;The driver of the vehicle registration
XXXX XXX incurred the parking
charge(s) on XX/XX/2018 for breaching the
terms of parking on the land at XXXX.
The Defendant was driving the Vehicle and/or
is the Keeper of the Vehicle
AND THE CLAIMANT CLAIMS
£160.00 for Parking Charges / Damages and
indemnity costs if applicable, together with
interest of £xxx pursuantto s69 of the
County Courts Act 1984 at 8% pa, continuing
to Judgement at £0.04 per day!!!8217;

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

KeithP

No need to quote the Claimant's PoCs.

So your para. 9 should end with:

...it fails to establish a cause of action which would enable the Defendant to prepare a specific defence.

And perhaps para 9 should be merged with para 1, to become para 1.1.

hartynoll

Thanks Keith

I have also added this:

5.4. The displayed !!!8220;Terms and Conditions!!!8221; on the signage state that !!!8220;Vehicles must park within a marked bay!!!8221;. However, at the time of the incident, no bays were marked on the site, therefore making compliance with this term impossible.

Coupon-mad

Remove this completely; I agree with KeithP:

The driver of the vehicle registration
XXXX XXX incurred the parking
charge(s) on XX/XX/2018 for breaching the
terms of parking on the land at XXXX.
The Defendant was driving the Vehicle and/or
is the Keeper of the Vehicle
AND THE CLAIMANT CLAIMS
£160.00 for Parking Charges / Damages and
indemnity costs if applicable, together with
interest of £xxx pursuantto s69 of the
County Courts Act 1984 at 8% pa, continuing
to Judgement at £0.04 per day'

Your defence is missing the facts of the case as the Defendant understands them, like in this one:

https://forums.moneysavingexpert.com/discussion/comment/74235485#Comment_74235485

Give the poor Judge a chance to see near the start, what the issue is really about, no terms seen (in the dark or not?) because the signs were so sparse and tiny and no-one among the 30 parents saw them. There were no lines on the road, nor an entrance sign to give anyone a clue that this was 'managed private land'. It appeared to be public highway (was not a car park) and looked, to any reasonably circumspect driver, like unrestricted parking at the kerbside.

Like in that example, state as well that that the Defendant did engage with the Claimant at the outset to appeal, and contrary to the BPA Code of Practice, the Claimant did not make ADR available in the form of POPLA, nor tell the Defendant about the appellant's rights to any ADR at all, which is against the law:

http://www.legislation.gov.uk/uksi/2015/542/pdfs/uksi_20150542_en.pdf

Decide now if you are going to the hearing as the DRIVER so you can talk honestly about the signs/lack of lines, or as registered keeper.

Personally I would go with the former, in a case where you can honestly say that pretty much ALL the cars there fell victim to this predatory ticketing, which breaches the BPA CoP and fails the test of fairness and transparency within the Consumer Rights Act 2015.

You also need a point distinguishing your case from Beavis (YOU MUST DO THIS), and the linked example defence gives you the citation number.

Can you gather witness statements from several parents, signed & dated and naming the date, location and facts of the lack of signs, especially from others who got PCNs and the debt collection letters themselves? WS stage comes later but I would suggest you look to file not just your OWN WS (which IS required at a later stage) but a couple of others to corroborate your story.

Again this is for later but I wanted you to start gathering your evidence, photos of the place (maybe a video?) and other people's signed/dated WS, once your defence is in. Preparation is key. If others have court claims, help each other out with WS.

Oh, and read the recent court decision recorded by DJ Iyer in Pace v Lengyel, which was about a case where the driver did not and could not have had a permit:

Click on the one called PACE v LENGYEL

Summarised here, and you need some of these issues raised in your defence:

http://parking-prankster.blogspot.co.uk/2017/06/pace-given-pasting-in-manchester.html

1) PACE did not have authority from the landowner to enter into contracts with driver. It did have the authority to issue tickets, but this would be on behalf of the landowner, so only the landowner could sue.

2) The signage failed the fairness tests established in ParkingEye v Beavis and because of the imprecise wording and failure to adhere to the...code of practice, no contract was entered into by the driver.

3) As parking required a permit, and as the driver did not and could not have a permit, the contract in any case failed by the doctrine of impossibility. As many other judges have found with this type of signage, this would mean no contract could be in place and the driver would be a trespasser. As the claim did not argue trespass, it was therefore bound to fail.

Just to show you that not having a permit does not mean a Defendant is doomed!