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Gladstones defence
abeltasman
Posts: 22 Forumite
Hi everyone,
Thanks for all the help you provide. I have received a claim form from Gladstones in relation to a PCN from Pace Recovery & Storage.
I visited a residential site for about 20 minutes to drop off a few things to a family member. It was after hours and the signs were poorly lit and very difficult to see in the dark (lack of contrast and so on). The parking bays were completely unmarked. There was no visible entrance signage (well above vehicle headlights and out of position)
I appealed to Pace/Ace but they rejected my appeal. They did, however, upgrade the signs two weeks after that appeal and suddenly marked the bays with contrasting signs that were different from the existing ones on site (thereby directly addressing the issues raised in my appeal).
I've done my best at drafting a defence using some similar cases and by leaning heavily on Pace V Lengyel which directly mirrors my own situation.
Really hope I haven't gone too far off the mark with this:
Preliminary:
1. The Particulars of Claim lack specificity to the point where the Defendant is prejudiced and unable to prepare a full and complete Defence.
2. The Defendant reserves the right to seek from the Court permission to:
(a) Serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings; or
(b) Limit the Claimant only to the unevidenced allegations in the Particulars.
3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant pre-action protocols in respect of claims formed by contract or conduct.
4. The Defendant further notes the Claimant's failure to engage in meaningful pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
Background
5) It is admitted that at all material times the Defendant was the owner of the vehicle in question.
6) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.
7) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.
8) It is admitted that the Defendant parked the vehicle on the material date while visiting a resident at XXXXX. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
Authority to operate
9) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with members at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.
10) Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.
11) In the alternative, any agreement signed between the Claimant and the landowner must grant the Claimant the right to enter into a contract with the driver, not merely to issue charge notices. In accordance with the contra proferentem rule, any ambiguity must be interpreted against the Claimant.
12) Further, the Claimant is also put to strict proof that any contractual authority it has received has been validly executed in accordance with Section 44 of Companies Act 2006
The Signage - performance and no offer
13) It is denied that there was a contract made between the Claimant and the driver through signage on the estate as the area was badly lit, lacking in contrast and poorly distributed and as such the Claimant was in breach of its own Code of Practice under the International Parking Community’s Accredited Operators Scheme.
14) It is denied that the Claimant fulfilled its requirements to erect suitable entrance signs and failed to deploy additional signage that was obvious to the motorist. The Defendant notes that the Claimant upgraded the signage on site two weeks after receiving the Defendant’s appeal.
15) It is denied that the Claimant’s signs constitute a fair or relevant contract. The terms and conditions of the sign, or the acceptance of a liability, are not synonymous with a contract.
16) In the alternative, any contract that was established was invalid under the doctrine of impossibility of performance as the Defendant had no means of securing a valid parking permit. The terms and conditions of parking detailed on the Claimant's signs can only apply to those with the authority to park.
17) Should the claimant rely on the case of ParkingEye v Beavis, the Defendant would like to point out that a charge is unconscionable as defined in the Beavis case. In the Beavis case there was an undenied contract, both sides agreed a contract was offered. In this case, the signage does not offer a contract, it forbids a driver from parking. Therefore as per the Beavis case, there is no complex contractual arrangement to disengage the penalty rule and so the PCN is unenforceable.
Thanks for all the help you provide. I have received a claim form from Gladstones in relation to a PCN from Pace Recovery & Storage.
I visited a residential site for about 20 minutes to drop off a few things to a family member. It was after hours and the signs were poorly lit and very difficult to see in the dark (lack of contrast and so on). The parking bays were completely unmarked. There was no visible entrance signage (well above vehicle headlights and out of position)
I appealed to Pace/Ace but they rejected my appeal. They did, however, upgrade the signs two weeks after that appeal and suddenly marked the bays with contrasting signs that were different from the existing ones on site (thereby directly addressing the issues raised in my appeal).
I've done my best at drafting a defence using some similar cases and by leaning heavily on Pace V Lengyel which directly mirrors my own situation.
Really hope I haven't gone too far off the mark with this:
Preliminary:
1. The Particulars of Claim lack specificity to the point where the Defendant is prejudiced and unable to prepare a full and complete Defence.
2. The Defendant reserves the right to seek from the Court permission to:
(a) Serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings; or
(b) Limit the Claimant only to the unevidenced allegations in the Particulars.
3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant pre-action protocols in respect of claims formed by contract or conduct.
4. The Defendant further notes the Claimant's failure to engage in meaningful pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
Background
5) It is admitted that at all material times the Defendant was the owner of the vehicle in question.
6) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.
7) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.
8) It is admitted that the Defendant parked the vehicle on the material date while visiting a resident at XXXXX. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
Authority to operate
9) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with members at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.
10) Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.
11) In the alternative, any agreement signed between the Claimant and the landowner must grant the Claimant the right to enter into a contract with the driver, not merely to issue charge notices. In accordance with the contra proferentem rule, any ambiguity must be interpreted against the Claimant.
12) Further, the Claimant is also put to strict proof that any contractual authority it has received has been validly executed in accordance with Section 44 of Companies Act 2006
The Signage - performance and no offer
13) It is denied that there was a contract made between the Claimant and the driver through signage on the estate as the area was badly lit, lacking in contrast and poorly distributed and as such the Claimant was in breach of its own Code of Practice under the International Parking Community’s Accredited Operators Scheme.
14) It is denied that the Claimant fulfilled its requirements to erect suitable entrance signs and failed to deploy additional signage that was obvious to the motorist. The Defendant notes that the Claimant upgraded the signage on site two weeks after receiving the Defendant’s appeal.
15) It is denied that the Claimant’s signs constitute a fair or relevant contract. The terms and conditions of the sign, or the acceptance of a liability, are not synonymous with a contract.
16) In the alternative, any contract that was established was invalid under the doctrine of impossibility of performance as the Defendant had no means of securing a valid parking permit. The terms and conditions of parking detailed on the Claimant's signs can only apply to those with the authority to park.
17) Should the claimant rely on the case of ParkingEye v Beavis, the Defendant would like to point out that a charge is unconscionable as defined in the Beavis case. In the Beavis case there was an undenied contract, both sides agreed a contract was offered. In this case, the signage does not offer a contract, it forbids a driver from parking. Therefore as per the Beavis case, there is no complex contractual arrangement to disengage the penalty rule and so the PCN is unenforceable.
0
Comments
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What does the family member's lease say about parking, especially visitor parking? This is vital.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Unfortunately it's clear - they can't permit or suffer any vehicles on the estate.
So that's why I tried to focus the defence around the PPC's signs / authority to operate. I might not have a strong case here but I at least want to make it hard for them.0 -
they can't permit or suffer any vehicles on the estate
That's a very odd phrase and may actually not be enforceable. Could we see the exact wording there.
It would be normal for people to be able to bring vehicles on as a normal part of life so it may be an overrestictive term.This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0 -
Thanks IamEmanresu. I will be able to get the exact wording tonight and post it here.0
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What about Jopson v Homeguard? That is an appeals case (so county courts must follow it, if relevant) and it relates to loading/unloading, which is apparently what has occurred here. The driver would not need to admit to "parking" if all he or she was doing was unloading. As for the lease, even if the parking of vehicles was not permitted, (a) loading may not have constituted "parking" for purposes of the lease, and (b), every lease includes an implied right of access, which the Jopson court determined includes "short incidental stops for the purpose of access to [a] flat".The appellant’s case could also be put in another way. The purported prohibition was upon “parking”, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time.
(Oh, and delete #12...)
--Kirchenmaus0 -
Thank you, Kirchenmaus.
I wasn't sure whether to include Jopson V Homeguard (even though I was unloading) because Jopson already had parking rights on her estate.
I'll include that now!0 -
Here are the relevant sections of the lease in question:
'Easements granted by this lease for the benefit of the property:
The right in common with the landlord and all others having the like right from time to time to pass on foot and repass on foot only over Common Parts
Not to park any vehicle or permit or suffer any vehicle to be parked in any parking space or other area within the Estate save for the Parking Space (if any)'
The resident in question does not have a parking space. Could Jopson still apply?0 -
I'm not sure the second one could properly be called an "easement", but it's hard to tell from snippets what effect this would have. In any case, loading isn't exactly "parking".
Your situation is not squarely in the sights of Jopson, but that case did also discuss what was "parking" and what wasn't, and that could be helpful to have in front of the judge.
--Kirchenmaus0 -
Your situation is not squarely in the sights of Jopson, but that case did also discuss what was "parking" and what wasn't, and that could be helpful to have in front of the judge.
+1 for that. It's spot on.
Going back to the lease, parking is allowed but only in designated spaces. There is a restriction on what the other areas can be used for - and parking is not offered. "Forbidding contracts" applies too but Jopson should be the killer.This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0 -
Thank you both so much. I have included the updated defence below - excluding point 12 and including a new heading about the distinction between stopping and parking and referencing Jopson V Homeguard. The way it is expressed might be a bit clumsy though.
Do you think this looks OK?
Preliminary:
1. The Particulars of Claim lack specificity to the point where the Defendant is prejudiced and unable to prepare a full and complete Defence.
2. The Defendant reserves the right to seek from the Court permission to:
(a) Serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings; or
(b) Limit the Claimant only to the unevidenced allegations in the Particulars.
3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant pre-action protocols in respect of claims formed by contract or conduct.
4. The Defendant further notes the Claimant's failure to engage in meaningful pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
Background
5) It is admitted that at all material times the Defendant was the owner of the vehicle in question.
6) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.
7) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.
8) It is admitted that the Defendant parked the vehicle on the material date while visiting a resident at XXXXX. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
Authority to operate
9) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with members at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.
10) Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.
11) In the alternative, any agreement signed between the Claimant and the landowner must grant the Claimant the right to enter into a contract with the driver, not merely to issue charge notices. In accordance with the contra proferentem rule, any ambiguity must be interpreted against the Claimant.
The Signage - performance and no offer
13) It is denied that there was a contract made between the Claimant and the driver through signage on the estate as the area was badly lit, lacking in contrast and poorly distributed and as such the Claimant was in breach of its own Code of Practice under the International Parking Community’s Accredited Operators Scheme.
14) It is denied that the Claimant fulfilled its requirements to erect suitable entrance signs and failed to deploy additional signage that was obvious to the motorist. The Defendant notes that the Claimant upgraded the signage on site two weeks after receiving the Defendant’s appeal.
15) It is denied that the Claimant’s signs constitute a fair or relevant contract. The terms and conditions of the sign, or the acceptance of a liability, are not synonymous with a contract.
16) In the alternative, any contract that was established was invalid under the doctrine of impossibility of performance as the Defendant had no means of securing a valid parking permit. The terms and conditions of parking detailed on the Claimant's signs can only apply to those with the authority to park.
17) Should the claimant rely on the case of ParkingEye v Beavis, the Defendant would like to point out that a charge is unconscionable as defined in the Beavis case. In the Beavis case there was an undenied contract, both sides agreed a contract was offered. In this case, the signage does not offer a contract, it forbids a driver from parking. Therefore as per the Beavis case, there is no complex contractual arrangement to disengage the penalty rule and so the PCN is unenforceable.
Stopping / parking distinction
18) The Defendant relies on Jopson v Homeguard [2016] B9GF0A9E Appeal to draw a distinction between stopping and parking a vehicle. The parking bays used by the Defendant are regularly engaged by tradespeople and delivery vehicles when servicing the estate. As the Defendant had stopped to unload goods to a second floor flat at the far end of the XXXX building, the principle of stopping as outlined in Jopson V Homeguard applies.0
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