Gladstones court claim received - help please

kgirl123

I found this when I googled the company - https://beta.companieshouse.gov.uk/company/10762864
They are Slough based

Sweigers is an aftersales agent from my knowledge, does it need a Directors signature to authorise such a contract?

I haven't been able to get a copy of the lease, working on that today

kgirl123

WITNESS STATEMENT

I, XXXXX, of XXXXX, will say as follows:

I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

Before I describe what happened on the day, I would like to claim that the essence of my defence to this claim is that:
The signage used at Hayling Close, SL1 5DE Slough was misleading
The signage gave insufficient information to distinguish that the regulations apply to visitors parking, as not all spaces at the address require permits

1. I am the registered keeper of the motor vehicle XXXX.

2. The driver visited a resident at X Hayling Close and had parked the car in the visitors bay.

3. It was around 8.00pm at night, so it was getting dark outside and the driver did not notice the small signs which were posted up high above eye-level. They had not been there when the driver visited just over 2 weeks before.

4. The driver was in the residence for approximately 1 hour, and returning to the car realised there was a parking charge notice attached to the window. The driver looked around and found the signs with small print, almost illegible to read, but it did not state which spaces the regulation applied to. (see Exhibit 1, page X, photograph of signs)

5. The signs were posted mostly around the parking spaces allocated to the flats, with nothing directly above any of the 3 visitors parking spaces, other than a yellow sign stating ‘visitors parking’. (see Exhibit 2, page X, photograph of visitor signs)

6. I refer to the ParkingEye V Bevis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. In this case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges. (see Exhibit 3, page X, Beavis case sign).

7. This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read before the action of parking and leaving the car.

8. The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them. (see Exhibit 4, page X, Vine V Waltham Forest)

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs) had NOT entered into a contract.

So, for this case, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere close-ups of the (alleged) signage terms will not be sufficient to disprove this.

9. The driver checked with the resident they were visiting, who confirmed they had not been given a permit for their property, X Hayling Close, which is located in the same location, and as such there was no requirement for them to display one. This created confusion.

10. It appeared as though the parking regulations were put in place for the residents of the flats adjacent to the houses, but there was nothing to suggest that it also applied to the visitors parking.

11. The reminder letter I received, as the registered keeper, approximately 4 weeks afterwards referred to 1-12 Hayling Close, where in fact 1-6 Hayling Close do not require permits and as such are exempt from the regulations. This further reassured me that the company was using false claims to scare me into paying.

12. The claimant has sent threatening and misleading demands which stated that further debt recovery action and costs would be taken to recover what is owed by passing the debt to a recovery agent. These letters suggested to me that a County Court Judgment would apply if matters were taken to court and that this could affect my ability to obtain credit, pressuring me into paying something I believe is unjust.

13. There was no requirement upon me to respond to what appeared to be junk mail, impersonating a parking ticket yet with no basis in law.

14. As these letters were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared as junk mail.

15. After receiving the Claim Form, I spent many hours researching this case and the laws surrounding it, and I have found I am not the only one this has happened to, which shows the firm is neglecting their duty of care. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012.

16. The claimant has not identified the driver of the car at the time and as the registered keeper I have no obligation to name the driver. At the time, the car was insured with 3 named drivers. There is no lawful presumption that a registered keeper was the driver, in relation to private parking charges (evidenced by barrister Henry Greenslade in the POPLA Annual Report 2015, where he also confirmed that a keeper cannot be held liable within the scope of POFA, schedule 4) (see Exhibit 5, page X, POPLA 2015 pages 12-13; and Exhibit 6, page X, POFA schedule 4)

17. I tried to contact the property management company, Mackenzie Homes, in March 2018, to request clarification on the parking restrictions, but received no reply. (see Exhibit 7, page X, email correspondence)

18. The claimant is clearly using copy and paste Witness Statements following the unscrutinised claim issued by Gladstones. They mention the Reading County Court but as the presiding Judge will be fully aware – as am I – this is not the court I will attend. If a hearing takes place, it will be in Slough County Court.

19. The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as is allowable pursuant to CPR 27.14.

20. I believe that the facts stated in this Witness Statement are true.

Dated 7th September 2018
Signed XXXXX
(Defendant)
of Parking and Property Management Limited

System

Do you know the name of the Freeholder according to the lease / Land Registry?

Coupon-mad

Too late for a counter claim.

I have noticed the witness statement refers to reading court instead of slough, so adding that as a point

What do you mean, adding it as a point? Slough & Reading do move cases between them, we saw that in another case. Make sure you turn up at the right court on the day!

This should not be without paragraph numbers. Every point has a number:

I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

Before I describe what happened on the day, I would like to claim that the essence of my defence to this claim is that:
The signage used at Hayling Close, SL1 5DE Slough was misleading
The signage gave insufficient information to distinguish that the regulations apply to visitors parking, as not all spaces at the address require permits

System

Looking at Google Street View, there are also no entrance signs to show it is a controlled area nor what the controls are. There should be a warning of moving off the highway into a PPC controlled area.

If there are no signs at the entrance, get some and include them to show the lack - which is also a breach of their Code of Practice [Shoe Lane Parking is the underlying case]

kgirl123

IamEmanresu I included photos of the entrance, where there is a small sign high up on a lamp post, of course not noticeable if you're driving in, especially in the evening, and very hardly legible from that angle. Looking on Google Street View it's not been updated to show the small signs posted around but I have photos which I've submitted as evidence

System

not noticeable if you're driving in, especially in the evening

You have a go at that as it is vitally important for a driver to know of the transition from one controlled area (council and the roads) to another one controlled by UKCPM.

The other point to make is that all road signs have to conform to statutory guidance called TRSGD 2016. But UKCPM signs are not - they are "best endeavours".

If they ever claim they are approved by the IPC just point out that the IPC and Gladstones (who issue these claims) are owned by the same two people. Which is likely why they are getting replaced when parliament gets round to it.

kgirl123

Thanks for all your help IamEmanresu
I have received an additional WS from Gladstone’s via email today, which addresses the points in my WS
http://ibb.co/m4Hbpz

Do you recommend preparing a skeleton argument? The hearing is on Friday morning

nosferatu1001

A skellie can be very helpful, to sumarise your defence, the flaws in their argument, and any key elements you want to talk about.

kgirl123

Here's what I have drafted for the Skeleton Argument, please share any comments/guidance on this

PREAMBLE

This skeleton argument is to assist the Court in the above matter for the hearing dated 21/09/2018
2. The Defendant has identified the following areas of dispute:
(a) The identity of the driver and burden of proof
(b) No contract
(c) Prominence, illegible terms & confusing signage
(d) Conduct

SUBMISSIONS
3. The Defendant admits that they are the registered keeper of the vehicle in question.
4. The Defendant submits that they were not the driver at the times of the alleged contraventions.
5. The Defendant submits that the bright, alarmist letters were seen as a scam or spam, and recognised at the material time that they were not from an authority such as local council or the police.
6. It is submitted that the Defendant did not appeal the PCN and was under no obligation to do so as the keeper. The Defendant correctly assumed at the material time (and to date) that the issue was of no relevance to them.
7. The Defendant was a visitor of a resident at the location and was not trespassing.

DRIVER IDENTITY AND BURDEN OF PROOF
8. The Defendant refutes the allegations by the Claimant that they were the driver at the material time either directly or by presumption. The Claimant has no evidence to the contrary and the accusations are merely ‘hear-say’; not a factual reciting of a witness who was present at the material time.
9. “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.” (Henry Greenslade - POPLA Annual Report 2015).
10. The Defendant cannot indentify the Driver for the dates in question.
11. There is no law that would require the registered keeper to identify the driver for a parking charge on private land.
12. The registered keeper of a vehicle is required to furnish the Police with the identity of the driver under statute:
“(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police...”
13. “...a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time” (Henry Greenslade - POPLA).
14. The Defendant has demonstrated to the Court that the burden of proof for identifying the driver should not lay with the Defendant.

NO CONTRACT
15. Referring to the Claimant’s witness’s statement in para #13 “the Defendant was offered to park” within the site, ‘Permit holders only’ cannot possibly be an offer to park and by extension, no consideration or acceptance.
16. The sign is forbidding therefore no contract could have existed with any driver at the material time.

PROMINENCE, ILLEGIBLE TERMS & CONFUSING SIGNAGE
17. The Defendant disputes the witness’s judgement that the signs, or more specifically the terms and conditions, were highly prominent. In general, prominence can be a subjective affair in which colours, fonts, height, size and ambient light all play a significant role in determining if ‘something’ is prominent.
18. Significant proportion of core terms are exceptionally small especially when attempting to read from a moving vehicle (as shown in Claimant’s bundle).
19. The Claimant has admitted they are not liable for parking bays 1-6, however their correspondence states their parking scheme is enforced for 1-12 Hayling Close. This creates confusion for visitors of residents at 1-6 Hayling Close who do not hold permits.
20. The Defendant refers to Claimant’s witness’s statement para #4 “The Defendant was aware of the terms when they obtained a permit”, the Defendant never obtained a permit for the location. The permit on show in the photographs included in the Claimant’s bundle is for a location in Windsor where the car was regularly parked at the time and has no relevance to this case.
21. The Defendant has demonstrated to the Court how the overall depiction of a sign being ‘prominent’ is significantly reduced by using a font of small size which makes core terms illegible from a moving vehicle. Conflicting signage also causes misperception.
22. The prominence and legibility of the font size are also reduced by the placement, on very high sign posts, around 10ft tall.

CONDUCT
23. The Claimant seeks to apportion liability to the Defendant for not replying to their letters or identifying the driver, and suggests that this conduct caused the Claimant costs.
24. The Claimant however has not provided the proof of any loss or damage as stated in their Particulars of Claim.
25. In reference to Claimant’s witness’s statement para #28 “My Company is an Accredited Operator of the International Parking Community (IPC)”, the Defendant has come to know the IPC and Gladstones are owned by the same people, which discredits their legibility.
26. Defendant denies any debt being owed to the Claimant.
27. The Defendant was not trespassing at the location as they were a visitor of one of the residents.
28. The signage is misleading, suggesting permits are required for all marked bays, which is untrue. Bays 1-6 are also marked (as seen in photographs in Claimant’s bundle) but require no permit.
29. The resident did not hold any permits, as to pass them on to their visitor.
30. The Defendant has demonstrated to the court that the Claimant has been wholly unreasonable.