Help with Gladstones Court claim

Coupon-mad

Take the chance to write in response, thanking the Judge for the Order and asking him/her to take note that even if the Claimant does pay a trial fee or submit particulars by the 6th of December, your local Court - as you stated on your Directions Questionnaire - is MANCHESTER.

Thus the allocation to WSM was an error by the CCBC because you are a litigant in person, defending against a company, and you live in Manchester. State that your letter is not a formal application but relevant information for Weston Super Mare to redirect it to Manchester under their case management powers, and to ensure that the trial date is vacated, given the circumstances of this CCBC error.

Seize this chance while a Judge is looking at the case. Do not sleepwalk into a trial just after Christmas, miles from your home!

Midy147

Thanks Coupon Mad. I forgot to mention that the case was moved to manchester at the same time as the trial fee and particulars order. Is it still worth writing what you mention regarding the ccbc error.

Coupon-mad

Ah no, that's fine - good to hear! And Manchester has 'good' Judges clued up about PPCs' scam PCNs.

Midy147

I have written most of my witness statement. It is numbered and i have referenced exhibits in it.


Just a quick question some people have put legal arguments in and some have not which is the better option. Also as i will need the cases in the court, i will have to reference them in the witness statement is that right?

Coupon-mad

I tend to think it's easier to reference persuasive cases in the WS even though it's supposed to be the story of what happened/the facts as you know them. It's extra work for you to split it into a skeleton argument (legal arguments) and a WS.

I tend to take the easier route when writing a WS and refer to the cases in it.

Midy147

Hi Guys i have written my witness statement, please let me know what you think.


Witness Statement

The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. I am the registered keeper of the vehicle in question in this case. However due to the long passage of time since the alleged contraventions, I am unable to recall whether I was the driver.

4. As stated in my defence, the dates in question are unremarkable and I therefore have no recollection of the circumstances surrounding these events.

5. I recall receiving some letters in the post from the claimant and I ignored them as I believed them to be scam letters due to the excessive amounts being claimed. I felt vindicated in that decision when I received no further letters or contact of any kind from the claimant on this matter.

6. I was then surprised to receive a letter before claim from the claimants representatives. I did some research into why I may have received this and it seems the claimant and similar parking companies are submitting masses of court claims for old parking charges; and are inappropriately using the court system as a form of debt collection.

7. Despite my inexperience, after a lot of research I found the letter they sent to be insufficient. I requested a new Letter before Claim that was complaint with the Practice Direction.

8. A compliant Letter before Claim was not sent to me at any point.

9. The claimant subsequently sent me a pack of documents that it says it will rely on as evidence. One of the documents is a picture of the sign that it says forms the contract. The sign is mostly a wall of small font text, from which a driver in a vehicle under no circumstances would be able to read, let alone form a contract from.

10. The sign submitted by the claimant does not set out the additional costs and fees that have been claimed in this case. There is no evidence of any contract creating a charge of £100. Regardless, this part of the sign is in very small text and is therefore illegible even from a one metre distance.

11. Many of the documents submitted were photos of the vehicle in the car park. They show the poor lighting in the area and the scarcity of signs. It cannot be expected that a driver can be able to read and accept any terms on the signage.

12. Many of the photos are also of questionable accuracy. Many of the timestamps are illegible and so it cannot be confirmed what time or day they were taken. I am also of the opinion that some of the photos have very similar surroundings despite being claimed to have been taken at different times. Given the history of the claimant for falsifying photo evidence, I do not believe these photos can be relied upon for accuracy.

13. At the entrance to the car park there is no visible signs to alert a driver to any parking restrictions inside. The entrance is the main location for any sign to be placed especially in car parks.

See evidence 1 for photos of the entrance to the car park.

14. Within the car park there is large areas without any signs, any driver would find it difficult to spot any signs in the car park. Where there is signs they are small, illegible and out of view.
See evidence 2 for photos of inadequate signage at the car park.
See evidence 3 for a copy of the Beavis case sign which is considered a clear sign
15. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

In the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013 he states "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it”. I firmly believe that this is not the case in this car park.

See evidence 4 and 5 for copies of the POPLA reports in 2013 and 2015.

16. I found it odd when I received and acknowledged the court papers that this Claimant could bring a claim against me without actually referring to anything specific, it did not even say how many PCNs they were talking about.

17. I have attached a copy of the IPC code of practice as support. The code of practice clearly states the conditions parking operators are required to comply with. This includes how they should place signage at entrances to sites especially when it may be a new sign which was not previously there.


See evidence 6 for a copy of the relevant section of the IPC code of practice
18. The Claimant is again trying to change their Particulars of Claim without payment of the appropriate court fee or filing the required form. I object to these attempts to change woeful particulars which expose the robo-claim nature of their copy & paste claims.

19. The Defendant has the reasonable belief that the Claimant has not incurred £207.55 costs to pursue an alleged £120 debt. The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

See evidence 7 for a copy of relevant civil procedure rules.

20. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).

See evidence 8 for a copy of the relevant civil procedure rules.

21. At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable.

In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

See evidence 9 for proof of the car parks parking rates which were found whilst preparing this statement.

22. The claimant has not provided written authority of the landowner. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).

See evidence 10 for a copy of the relevant practice direction.

23. The claimant is invading the privacy of the defendant by using ANPR technology when it is inappropriate to use. The claimant has failed to complete all the required checks and assessments before the use of this technology. This is a clear breach of the data protection act principle one.

In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply.

See evidence 11 for this article.

24. If there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act. The illegal act is the non-compliance with the regulations surrounding ANPR technology and its legitimate usage. As such, the asserted contract cannot be enforced in this case.

25. The case of Andre Agassi v S Robinson (HM Inspector of Taxes) is attached as evidence 12.

Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues -''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

26. The case of RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015) is attached as evidence 13.

At paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a claimant.''

27. To add weight, the case of ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 is attached as evidence 14.

Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

(a) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.
(b) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.
(c) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

28. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

The Claimant is attempting to claim additional charges such as solicitors and legal costs of £257.55. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

See evidence 15 for the protection of freedoms act 2012.

29. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’

On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.


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


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Midy147

Could anyone spare a moment to check if it is ok, i would be grateful. I have until the 20th to get this to the court and the other party.

Le_Kirk

You don't have a number 1. It is normal to start with: -
1. I am xxxxx, of xxxx, the Defendant in this matter. I will say as follows: -

Letter before Claim that was complaint with the Practice Direction.

Did you mean compliant?

Midy147

Thanks. I removed number 1 for the post, forgot to put an anonymous line in there.

Midy147

Ok just gathering things to send to the claimants and the court. I have made a bundle with my defence, WS and evidences. Shall i send all of this to the claimant and the court.


Or shall i just send the WS and evidence to both/ claimant only