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District Enforcement/Gladstones Court Defence

edited 30 April 2018 at 6:24PM in Parking tickets, fines & parking
8 replies 857 views
larissablarissab Forumite
4 Posts
edited 30 April 2018 at 6:24PM in Parking tickets, fines & parking
Wonder if someone can help me - the keeper received a PCN in October - After writing a few letters to Gladstones they have received court papers and need to write a court defence - I have just come out of hospital and am struggling to know where to begin. It was PCN on the keepers windscreen and the car was parked at a football club and the pcn says car was not parked wholly in a bay - in fact a majority of the car parking area is not marked out. I know the NTK Is non compliant so we have started with this on court defence but that is where my knowledge finishes - I don't know where to go from this point on - can any one help me?

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  • Le_KirkLe_Kirk Forumite
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    Go the Newbie stickies for all the help you need. One click back, third post down.
  • edited 30 April 2018 at 6:23PM
    larissablarissab Forumite
    4 Posts
    edited 30 April 2018 at 6:23PM
    Thanks for that and I have started to compile my defence however do you have any further court cases that refer to parking within a wholly marked bay - the area they are referring too where the parking offence occurred is completely unmarked -over 95% of the car parking area is unmarked where members of the public park- its all on gravel or grass. Can anyone provide any further information for this case?
  • RedxRedx Forumite
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    remove any hint of who was driving in the above posts , especially if you have not revealed who was driving and if you are relying on POFA2012

    the correct words are the KEEPER, and the DRIVER
  • Coupon-madCoupon-mad
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    Try searching the forum for keywords, such as: defence unmarked lines or
    maybe, defence not parked within bay lines which will find you some threads like your case.

    Show us your draft defence, and please confirm you've done the AOS online now.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • larissablarissab Forumite
    4 Posts
    OK here is my defence - let me know your thoughts and any amendments


    Many thanks


    The claimant has issued a Notice to Keeper (NTK) that is not in accordance with the requirements of The Protection of Freedom Act 2012 (POFA). Under schedule 4, Section 8 (7) it states “When the notice is given it must be accompanied by any evidence prescribed under Paragraph 10”. No evidence was received with the NTK.
    • The claimant failed to include a copy of their written contract as per Practice Direction 17 7.3 (1) and Practice Direction 7c1.3 (3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Associations Code of Practice B1.1 which says;
    “If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions”.

    • The Claimant states the driver of the vehicle registration **** incurred the parking charge on 8/10/17 for breaching terms of parking on the land at ???????? for not parked wholly within a marked bay. The Defendant would suggest that the majority of the areas of car parking are completely unmarked. There are only a few bays that are marked within the whole area and there is a sign indicating “Reserved Parking for Learn to Dance Staff and Students” and from photographic evidence sent to the Defendant from the Claimant clearly shows the vehicle in question is not parked near or in a marked bay.
    3.1There was no contract formed to pay any charge for parking in a completely unmarked area of the site and neither was the car park obstructively

    • The claimant has also not shown the period of parking as required under Section 8 (2) (a). As no period of parking has been indicated it’s impossible to determine if the driver was within the Grace Period as outlined in the IPC Code of Practice.

      BACKGROUND
    • It is admitted that at the time of the alleged infringement the Defendant was the registered keep of vehicle registration mark **** which is the subject of these proceedings. The vehicle was insured with two named drivers permitted to use it.

    • It is denied that the Defendant was the driver of the vehicle. The claimant is put to strict proof.

        1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012. (POFA).
        2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA compliant the Claimant must demonstrate that:
        3. There was a ‘relevant’ obligation’ either by way of a breach of contract, trespass or other tort’ and
        4. That is has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
          It is not admitted that the Claimant has complied with the relevant statutory requirements.
      1. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the drive to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made so s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
    • The defendant wrote to the claimant on 5th January 2018 & 20th January asking for:
      a) Full particulars of the parking charges
      b) Who the party was that contracted with District Enforcement Ltd
      c) the full legal identify of the landowner
      d) A full copy of the contract with the landowner that demonstrated that District Enforcement Ltd had their authority
      e) Written confirmation that Planning Permission was obtained for the planning and and advertising consent.
      f) A full breakdown of the amounts being claimed and an explanation as to how the Claimant considers these to be justified.

      The Claimant has not responded with any of the above information.
      As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.
    • 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.
      1. The Claimant is not the landowner and suffers no loss whatsoever as a result of the vehicle parking at the location in question.
    8.3The 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.

    • The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, or how the amount has escalated from £100 to £160. There appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    9.1 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.
    9.2 The driver did not enter into any ‘agreement on the charge’ no consideration flowed between the parties and no contract was established.
    9.2.1 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.

    FAILURE TO SET OUT CLEAR PARKING TERMS.
    • The Defendant relies upon Parking Eye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in 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.
    10.1The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate. A majority of the car parking areas are not marked up in clearly defined bays.
    10.2 At the time the Defendant avers that the signage was deficient in number, location to reasonably convey a contractual obligation.
    10.3 The signage did not comply with the requirement of the Code of Practice of the Independent Parking Committee’s (“IPC’s”) Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and in the leading judgement of Denning MR in J Spurling V Bradshaw (1956) EWCA Civ 3.
    10.4 District Enforcement had only recently placed their signage in this public area creating new terms and conditions for motorists. The IPC Code of Practice states that;
    “When there is a change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period”.

    There was only one sign at the entrance and limited signs placed at high levels to alert drivers.
    10.5 The IPC Code of Practice states that
    “Have clear and intelligible wording and be designed such that it is clear to the reasonable driver that the is entering into a contract with the creditor or committing a trespass as the case maybe”.
    The signs indicate Parking Conditions Apply as follows;
    “Parked on the access Road, or not parked wholly within a marked bay (where marked), or causes obstruction, inconvenience or otherwise blocks another vehicle”.
    The defendant reasonably states that the majority of the car park is based on gravel or grass and there are no marked bays. Marked bays are sited outside a building where is clearly denotes “Reserved Parking for Learn to Dance Staff and Students”.

    WHOLLY UNREASONABLE
    11. The Defendant respectfully suggests that parking companies using the small claims track is a form of aggressive automated monetary demands against motorists, alleging debts for parking on free customer parking areas is not something the Courts should be seen to support.

    12 The Court is invited to take Judicial Notice of the fact that the Claimants solicitors, Gladstones, is engaged in a course of conduct which involves issuing ten of thousands totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England and Wales.

    14. 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., for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    15. If the court is not minded to make such an order, that 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 the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    Name Signed Date
  • Coupon-madCoupon-mad
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    It is denied that the Defendant was the driver of the vehicle.
    Deny?? Honestly?

    https://forums.moneysavingexpert.com/showthread.php?p=74163259#post74163259

    Have you done the AOS online to increase the time to work on this defence?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • The_DeepThe_Deep Forumite
    16.8K Posts
    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 they will be out of business by Christmas.
    You never know how far you can go until you go too far.
  • larissablarissab Forumite
    4 Posts
    Yes I have gone online and completed my court papers and need to submit the defence asap. I will amend the deny wording - but apart from that do you think it is good to go?
    Thanks for your help too
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