Gladstones SIP - Parking Charge - Court

Junadium87

Hi, I have recently been made aware that I have a court date against Gladstones over a Parking charge. I was not the driver of the vehicle at the time, I did not receive a NTK, although in their witness statement they have provided a copy of it. I filed my defence a few months ago and again did not receive papers from the court (mail problems probably caused by weather). By chance I called the court to get an update and was told of the date which is next week,

The PCN relates to exceeding the time on the ticket.

I have had a look at the signs at the Carpark and they specifically state 'You, the Driver are agreeing to the following contractual terms'. - Now I was NOT the driver of the vehicle at the time, I did not enter into any contractual agreement with them. Is there anything here that I may be able to use?

Thank you

nosferatu1001

Well, given youve already filed a defence, you cant easily raise NEW arguments. Do you have an existing thread on here?

If not show us your defence.

You MUST very quickly write your witness statement. It must cover that NO NTK was ever recevied by you (so youre not liable unde POFA, which I hope was in your defence)

The sign forms a contract with the driver. Same as it does in every case. POFA doesnt care if you were the driver - jus tthat youre the keeper. If youre the keeper you can be liable for the drivers contract.

Junadium87

Thank you for you response.
I don't have another thread on here. The defence I filed is as below:

1. I am the Defendant,

---

and reside at

---

2.The Defendant denies any liability whatsoever to the Claimant.

3. A valid ticket was purchased by the driver to cover the!estimated!duration of stay

4.If the Claimant is intending to pursue this claim against the Defendant on the basis that the Defendant is the registered keeper then the Claimant has failed to show that the conditions for recovering this charge under Schedule 4 of the Protection of Freedoms Act 2012 have been met. The Defendant disputes that any of the conditions necessary for a claim to be pursued against the keeper of the vehicle have been met.

5.a)No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012.

5.b);Where a Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 8, Schedule 4 of the Protection of Freedoms Act 2012

5.c)No evidence has been provided to show that the Creditor has made a valid application for keepers details in accordance with Paragraph 11, Schedule 4 of the Protection of Freedoms Act 2012.

6.It is believed that the Claimant has no standing to bring this claim. The proper Claimant is the landowner. The claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to SIP PARKING LTD. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case

7. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the ParkingEye Ltd v Beavis [2015] UKSC 67, such a matter would be limited to the landowner themselves claiming for a nominal sum.

8.The Claimant might argue that the Supreme Court!!!8217;s decision in Parking Eye v. Beavis is applicable. The Defendant will argue that the present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. The main difference is that the Supreme Court determined that, in a retail park, there was a public interest in ensuring a turnover of visitors that justified a disincentive to overstay. There is clearly no such interest in a third party attempting to impose its conditions where there is no public interest in ensuring a turnover of visitors.

9.The Defendant also disputes that the Claimant has incurred £50 solicitor cost and interest. The Particulars of Claim are spectacularly deficient and woefully inadequate to show a cause of action.

10.The Claimant has not complied with the pre-court protocol. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states !!!8220;parking charges!!!8221; which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.I believe the facts stated in this defence are true.

Thanks again

Coupon-mad

Decent defence, albeit saying:

I did not receive a NTK, although in their witness statement they have provided a copy of it.

...will be a bit of a difficult mountain to climb. There is a NTK in evidence.

Now show us your WS. When you got theirs, it was a BIG CLUE your case was looming and that you should have filed your own WS and evidence you wish to rely upon. Oh dear.

By chance I called the court to get an update and was told of the date which is next week,

Oooh that's gonna be late, so quickly URGENTLY put your evidence and WS together tomorrow and if you can hand deliver it to the local court before they shut (could be early on Fridays before noon even!) that you be amazing. If not, work on it over the weekend with us and file a decent WS and defence in person on Monday morning, and email a copy to Gladstones.

Junadium87

Coupon-mad wrote: »

Decent defence, albeit saying:


...will be a bit of a difficult mountain to climb. There is a NTK in evidence.

Now show us your WS. When you got theirs, it was a BIG CLUE your case was looming and that you should have filed your own WS and evidence you wish to rely upon. Oh dear.


Oooh that's gonna be late, so quickly URGENTLY put your evidence and WS together tomorrow and if you can hand deliver it to the local court before they shut (could be early on Fridays before noon even!) that you be amazing. If not, work on it over the weekend with us and file a decent WS and defence in person on Monday morning, and email a copy to Gladstones.

Thank you so much for your response. I haven't prepared a witness statement yet, I've been reading on all sorts of forums to figure it out. In terms of my evidence I am quite lost.

The witness statement mentions the defendants liability and uses POFA quoting 'The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle'

The sign (contract) at the carpark refers to the driver, the witness statement constantly refers to the defendant (me) as the driver - however I was not the driver. If I know who the driver was at that time, is it possible to take the driver with me as a witness or is that a bad idea?

The witness statement also states that 'My company rejects any argument that the Defendant did not see the sign' but the Defendant (me) was 100 miles away at the time. As mentioned, I was not the driver.

I will be eternally grateful for any help you can provide.

nosferatu1001

YOUR WS is what you need now. Not theirs

WS is easy: statement of facts. You include that you never received NtK, the fact they calim to have sent one - except they wont have a witness to who posted it so their evidence is hearsay - is rebutted by you. Its then up to the judge to do it

For your evidence you include anything that supports your defence. Dont take the driver with you. Just state, inyoru WS, that you were not the driver. If you have OTHER evidence showing that, include that in your evidence and refernce it from your WS. DO THIS NOW.

STOP READING THEIR WS. DO YOURS NOW.
Just add a general statement that the claimants WS makes a series of assumptions that have no proof, and that in fact you expressly deny are true. The claimant is put to strict proof of every element of their claim.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

Coupon-mad

The NEWBIES thread post #2 shows examples of WS and some tips about typical evidence to file.

Junadium87

Hi, thank you very much for all the advice so far. I have prepared my WS which I need to submit tomorrow. Could you kindly see if this will be sufficient?

Witness Statement

I am

---

defendant in this matter and deny liability for the entirety of the claim.

1. This matter relates to a manned barrier entry pay point car park with pay & display and on the material day, 10.1.2017, The driver bought a ticket for 2 hours from the man at the barrier.

2. The driver purchased a valid ticket to cover the estimated duration of stay from the man at the manned barrier pay point, prior to entry to the carpark.

3. The man at the barrier pay point did not state any conditions of parking and only asked how many hours the driver wanted to stay and then produced a ticket upon payment.

4. Exhibit 1, shows a photo of the car park entrance, the barrier, the pay point sign and a sign displaying the cost of parking. No contractual sign stating terms and conditions can be seen, furthermore the sign the claimant is referring to is not visible anywhere prior to entering the car park at the barrier.

5. Even if the signs at the entrance pointed to other signs inside the car park, it would be an invitation to treat. For example; shop sign saying 50% off most items. Such a sign does not force people to buy anything when they come in nor does it force the shop keeper to sell everything at 50% off. In the case of this car park, the driver may accept the first invitation but if the driver does not like the terms of the contract once entered the car park, the driver is not obliged to be bound by them nor does the driver have to leave.

6. Exhibit 2, shows the sign the claimant is referring to and is well inside the car park. The sign ONLY refers to the driver of the vehicle. I was NOT the driver of the vehicle and therefore did not enter into any contract with the claimant.

7. The claimant refers to POFA 2012 allowing the creditor to recover any unpaid parking charges from the keeper of the vehicle. However, POFA 2012 paragraph 7.2(e) states “Identify the creditor and specify how and to whom payment be made.” Exhibit 3 which serves as the notice to driver does not identify who the creditor is at all. Therefore, the claimant has not met the conditions of POFA 2012.


8. In VCS vs Sarah Quayle, Deputy District Judge Gourley states:
“For me to find that there has been a breach of contract I have to find that the defendant, that is, Miss Quayle now Miss Wilson, entered into that contract by virtue of the fact that she was the driver at the time that the parking charge notice was issued and at the time that that car was parked in the Princes Dock area on 28th December 2014.”

I was not the driver at the time and did not enter into a contract with the claimant. Exhibit 4 (Vehicle insurance papers) show two additional named drivers who could have been the driver of the vehicle.
Deputy District Judge Gourley further states:
“Therefore it strikes me that there is a simple question that the court has to ask itself. Is there evidence produced by the claimant to show that Miss Quayle, and I will call her Miss Quayle for the remainder of the judgment, is there evidence to show from the claimant that Miss Quayle was on a balance of probabilities the driver on 28th December 2014 when the car was parked in the Princes Dock area? The claimant has produced absolutely no evidence that the defendant was the driver and simply says that they are entitled to presume that the defendant was the driver because effectively she was the registered keeper at the time.”

The claimant has not provided any evidence to show whether I was the driver at the time.
Furthermore, Deputy District Judge Gourley further states:

“I disagree. I disagree particularly in light of the evidence that has been produced by Miss Quayle showing that there are two other people who are on the contract of insurance for this car. She is not the owner of the car albeit she is the registered keeper. The owner of the car is her partner, Mr Green, who also appears on the contract of insurance as one of the named drivers. She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look
solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.”

The defendant rejects any liability, rejects having ever entered into a contract with the claimant, was not the driver of the vehicle at the time and the claimant has not met the conditions of POFA 2012.

I believe that the facts stated in this witness statement are true.

Evidence is attached

Coupon-mad

7. The claimant refers to POFA 2012 allowing the creditor to recover any unpaid parking charges from the keeper of the vehicle. However, POFA 2012 paragraph 7.2(e) states !!!8220;Identify the creditor and specify how and to whom payment be made.!!!8221; Exhibit 3 which serves as the notice to driver does not identify who the creditor is at all. Therefore, the claimant has not met the conditions of POFA 2012.

What is Ex3? They have to have served a compliant Notice to KEEPER. Not just a PCN to driver.

Have you got the P&D ticket to show as evidence to support #2?

2. The driver purchased a valid ticket to cover the estimated duration of stay from the man at the manned barrier pay point, prior to entry to the car park.

You should also exhibit the Beavis sign as a comparison; it is brief & has the £85 in large letters:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s1600/Parking%2Bsign_001.jpg

Also take 3 copies of Schedule 4 of the POFA with you to the hearing (no need to file in advance).

Junadium87

Thank you for the advice coupon-mad.

Ex3 is the parking ticket they placed on the wind screen which they have provided as evidence in their witness statement. (As a new member Im not allowed to post pictures?)

In their WS they have also provided an image of the ticket

Am I correct in bringing up the POFA 7.2(e) as the ticket above which is the notice to driver does not state the creditor. The NTK which they have also provided specifically states 'We, the creditor' But as the ticket did not, this would mean that they have not complied with POFA?

Thank you