Link Parking / Gladstones - unclear signage Court Defence by 23 July

psdie

No relies unfortunately, so will pick something and start a daft - last minute advice welcome (deadline Mon 4pm)

Coupon-mad

I'm struggling to find which post you mean, via post search (which unfortunately doesn't allow phrases)

Yes it does.

Hit ''Search this forum'', put in the phrase I said, then 'advanced' and 'show posts'.

psdie

Hi CM - thank you for the reply - Advanced Search only has a "keyword search" option (not phrase matching) that I can see (desktop browser) - if I search for the whole phrase, then select "Show results as: posts", I get various posts that don't mention that whole phrase - e.g., this one (link), which is an unfinished filing. Possibly something like Millennium - County Court Claim Received (link)?

If I use Google site search (link) to search the whole of the MSE forums for that exact phrase, there are no matches - so do you mean a different phrase, or to use keyword matching?

What am I missing, or which thread do you mean please? :undecided Thanks

Coupon-mad

That one will of course come up as a result, because it has the keywords abuse of process in the middle of the latest draft of his defence. But that's not the one I mean, and I almost never do searches for people...

Try dropping 'Gladstones' from the search, to widen the results, as I recall the wording was used recently in CEL cases who do not use G's.

psdie

OK, I'll do a general "abuse of process" search and try find something recent and relevant. Any comment on the following specific queries please someone?

1. Does the Particulars wording above properly demonstrate "cause of action", or should I state it fails to do this due to ambiguities (e.g., which terms of parking were breached, vague description of the claim amount)?
2. Is it significant that the Claim Form has no signature mark, or is this normal?
3. If they were to win, are "Legal rep costs" generally disallowed in Small Claims cases, so I don't need to go into detail on the amount being unjustified (as some Defences do)?
4. I presume I will receive a more detailed evidence bundle from them before the trial. Is this due earlier than my own evidence bundle, so that I can defend myself against the detailed claims - or are they due at the same time? Seems rather unfair if so - defend self against a vague claim 1 paragraph long.

Thanks in advance!

Coupon-mad

1. You will see all example defences point out the lack of a cause of action/lack of detailed POC.

2. Not sure what you mean but the claim form presumably says it was filed by Gs?

3. You DO need to go into detail and shouldn't assume their costs will not be granted.

4. Always due at the same time, even when we use defence words asking for sequential service, which you should include, you never know.

psdie

Thank you CM - responding:

1. Yep, most defences mention - but they usually appear to be based on older Particulars that just have a table of details followed by the "AND THE CLAIMANT CLAIMS" amounts. Newer Gladstones claims like mine above spell out the details, but with the vague "terms of parking". Does this still qualify as lacking "cause of action"?
2. Says HeleX CooX, Claimant's Legal Rep - but there's no hand signature, or scanned signature, which regulations imply is required. Is that normal for MCOL / not an issue?
3. OK, will do.
4. OK thanks - odd system - defend again a vague claim before receiving full details!

Coupon-mad

Newer Gladstones claims like mine above spell out the details, but with the vague "terms of parking". Does this still qualify as lacking "cause of action"?

Yes I would say you can always argue that re a Gladstones POC.

Helen Cook's name is enough on MCOL as there is no facility to sign, as such.

psdie

Thank you CM, am finishing on the Defence now. A POFA query- I was under the impression that 3 requirements under POFA were that:

a) the PPC has reasonable cause to believe the PCN is valid (after hearing any initial appeal), and
b) they must offer an independent ADR method (IAS / POPLA), and
c) they must adhere to their TA's Code of Conduct - e.g., clear signage.

However, I can't see mention of these as specific requirements looking at the text of POFA Schedule 4 (link) - only that they must mention any ADR available (but not necessarily allow it to be used! *) and that the DVLA is responsible for deciding if there's "reasonable cause".

What legislation can I cite that mandates all or some of the above, if it exists? I see mention that before POFA was introduced, all PPCs were required to be members of ATAs in order to use POFA, and ATAs were required to introduce appeals bodies - but haven't found where this is mandated.

* ADR - in my case the PPC refused to allow appeal / ADR appeal unless I named the driver, and even if they had allowed, the IAS can be demonstrated to have conflict of interest with Gladstones so lack independence.

psdie

WIP draft - first half of Defence:

IN THE COUNTY COURT - CLAIM No: <CLAIMNUM>
BETWEEN:
LINK PARKING LIMITED (Claimant)
AND:
<MYNAME> (Defendant) of address: <ADDRESS>

DEFENCE

---- Preface

---

1. I am <MYNAME>, the Defendant and Registered Keeper of the vehicle in question (<REG> - the Vehicle). This is my Defence and Statement of Truth.

2. It will be common ground that the Claim concerns a private PCN (ref <PCN REF>) issued on SUNDAY <DATE> at approx <TIME> at night for the Vehicle, in relation to an alleged breach of the terms and conditions of parking by the driver at that time.

3. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the reasons detailed in this Defence.

4. As an unrepresented litigant-in-person, and given that the Particulars of this Claim are vague and ambiguously worded (as detailed below), I seek the Court's permission to amend and supplement this Defence as may be required upon disclosure of the Claimant's case.


---- Particulars of Claim fail to comply with Civil Procedure Rules – Request to strike out

---

5. The Particulars of Claim are sparse, vague and ambiguous, and have no reasonable prospect of success as currently drafted. They fail to comply with Civil Procedure Rules (CPR) and relevant Practice Direction (PD) on multiple points. Therefore the Court is invited to strike out the claim of its own initiative at the earliest opportunity, using its case management powers.

a. The Claimant's solicitors (Gladstones) are known to be a serial issuer of tens of thousands of automated generic claims similar to this one (so called ‘robo claims’), with no due diligence, no scrutiny of details, or even checking for a valid Cause of Action. HMCS have reported identifying thousands of similar poorly pleaded claims, which are routinely dismissed by District Judges sitting in this Court and others throughout England & Wales.

i. It is understood that Gladstones are under an active investigation by the Solicitors Regulation Authority as a result of its poor conduct. The firm was one of a handful specifically highlighted for unfair practices by MPs during 2018 debates of Sir Greg Knight MP's 'Parking (Code of Practice) Bill' in Parliament.

ii. The Defendant argues that the Claimant's conduct in aggressively pursuing unrepresented consumers through the small claims track using an automated system provided by their solicitors is against the public interest and not something the courts should support.

b. In common with other ‘robo claims’, the Particulars are sparse and fail to state what specific "terms of parking" are claimed to have been breached – i.e., no proper Cause of Action. A parking charge could be for trespass, breach of contract or a contractual charge; each is treated differently in law and requires a different defence.

c. The Particulars fail to provide a copy of the alleged contract or general terms as required under PD part 16 paragraphs 7.3(1) and (2). The wording of any contract will naturally be vital, and a copy of the claimed terms has never been provided to the Defendant.

d. The Particulars state a claim amount substantially higher than those on the PCN and Notice to Keeper (NTK), including unrecoverable charges addressed later in this Defence. The charges are ambiguously described with a menu of choices ("Parking Charges / Damages and indemnity costs if applicable" – differing from prior descriptions), with no breakdown of the amount.

e. For these reasons, the Defendant is unable to prepare a full and complete Defence.

i. The Claimant’s solicitors are understood to habitually delay providing detailed claims that can be properly responded to until late in proceedings – an abuse of process that significantly disadvantages unrepresented Defendants and shows contempt for the court.

ii. Should the Claimant add to or expand their Particulars at a later stage of these proceedings, such as through their Witness Statement, the Defendant asks the Court permission to amend or supplement his Defence, and/or to limit the Claimant only to unevidenced allegations in the Particulars.

iii. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information (some of which has already been requested by the Defendant but the Claimant has refused to provide), after which the Defendant be allowed reasonable time to file an updated Defence:

• Whether the matter is being brought for trespass, breach of contract or a contractual charge, and a clear description of the exact alleged cause of action;
• A copy of any contract it is alleged was in place at the time of the incident;
• How any contract was concluded (if by performance, then copies of signage maps in place at the time);
• Whether the Defendant is being pursued as alleged driver, subject to strict proof, or as Registered Keeper.
• Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter to provide strict proof;
• The full legal identity of the landholder, with their contact details and a copy of the Claimant’s contract (or full chain of contracts) with the landholder.
• If charges over and above the initial charge are still being claimed, the specific claimed basis for these additions;
• If interest charges are still being claimed, the detailed basis and calculation.


---- Background & Claimant refusal to hear appeal

---

6. The primary driver of the Vehicle during in 2017 was a driver other than the Defendant. No evidence has been supplied by the Claimant as to the identity of the driver at the time of the PCN. The Defendant has at all times declined to identify the driver to the Claimant, as they are under no obligation to provide such information to a private company.

a. The Claimant’s chosen Alternative Dispute Resolution (ADR) organisation, the Independent Appeals Service (IAS), state in their website Frequently Asked Questions, under the heading “Do I Have To Name The Driver?”: “If your appeal relaters to a parking charge issued in England or Wales then you do not have to name the driver.”

7. Soon after the PCN issue date, the Claimant was supplied with a full appeal including photos of signage next to the parking space in question showing unrestricted parking on Sundays (the day of parking). Despite this, the Claimant repeated refused to consider the appeal unless the driver was identified, even after their attention was drawn to their own ADR organisation’s guidance (6.a above).

a. The Claimant’s ADR organisation, the IAS, only consider appeals after the parking operator has reviewed the appeal; therefore the Claimant’s refusal to hear the Defendant’s appeal meant no ADR method was available. It is believed this arrangement is deliberate to discourage appeals and encourage unwanted payments, which would qualify as vexatious behaviour.

b. Considering appeals and offering ADR are requirements under Protection of Freedoms Act 2012 Schedule 4 (POFA), as well as the Code of Practice set by their Accredited Trade Association (ATA) the IPC, so the Claimant failed to even attempt to meet its basic obligations to verify whether the PCN was issued correctly.

c. By refusing to hear an appeal, and later refusing to engage with the Defendant and provide requested information, the Claimant also failed in its requirements under PAP rules to exchange information with a view to avoiding unnecessary escalation and court proceedings. This failure extended to the Claimant’s solicitors, who failed to even acknowledge our communications.


---- Unclear & conflicting signage

---

8. The public parking sign that shows no restrictions on Sundays is right by the entrance and a meter or so from the Parking Space, as can be seen in evidence photos. It is the ONLY sign visible from the Parking Space and clearly indicates parking was unrestricted on the evening in question.

a. The public parking sign lists controlled hours as “Mon – Sat, 8am – 8pm”, which means Sundays are unrestricted. This is confirmed in the Department for Transport’s official ‘Know Your Traffic Signs’ guide, which shows a very similar parking sign on P49, and clearly states: “The top panel indicates that the parking controls apply from Monday to Saturday. [.] At all other times and on Sunday the bay may be used by any vehicle without any time limit.”

i. The Vehicle was moved from the site soon after the time of the PCN and before midnight.

b. The Claimant’s PCN was accompanied with a blurry photo of a small sign stating permits were required. In preparing this Defence, the Defendant searched the parking site for this sign, and found it some distance from the parking space in question (the ‘Parking Space’, by the site entrance), embedded into an overgrown hedge that curves away from the entrance, so the sign is completely out of sight from the entrance and Parking Space.

i. The Claimant’s sign is positioned above head height, with charges and terms in small print, as can be seen in evidence photos. The positioning, font size, overgrown shrubbery and lack of illumination mean the sign is hard to read even if a visitor knows where to find it, particularly at night. It is invisible sitting in the Parking Space.

ii. The sign does not conform to the IPC’s Code of Practice (Schedule 1 – Signage), which states: “Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obvious to the motorist.”. The sign is not located nor mentioned near the site entrance, as required (“Entrance signs”).

c. No other signs from the Claimant were found during a scout of the nearby area. A forbidding permit sign not mentioning the Claimant is located to the side of the entrance – but it is unlit and obscured by vehicles in parking spaces immediately in front of it (as it is believed was the case on the evening in question), so is easy to miss when driving into the car park, particularly at night – this is shown in evidence photos.

i. In small print, the sign mentions different terms from the Claimant’s, including the availability of paid public parking on Saturdays, but makes no mention of specific penalty terms. The sign has a plain back so can’t be read from inside the car park, and is hard to spot at all as it forms part of a row of bollards.

ii. The entrance sign does not conform to the IPC’s Code of Practice (Schedule 1 – Signage): it uses non-standard wording and fails to direct drivers to other more detailed terms signs. The heading text can’t be read by drivers “without needing to look more than 10 degrees away from the road ahead” when vehicles are parked in front of it (“Text size”). The sign is neither illuminated nor “made of retro-reflective material” – “You need to ensure that all signs are readable during the hours of enforcement as they form the legal basis of any charge. If signs cannot be read then resulting charges that depend upon their content will not be enforceable.” (“Contrast and illumination”).

d. It should be obvious from the above that signage at this location is entirely inadequate and incapable of creating a contract with the Defendant. The only clearly visible signage stated parking was unrestricted at the time; the Claimant cannot place a contradictory sign out of sight and expect it to override the unrestricted sign adjacent to the Parking Space.

i. For the reasons described, the signage at this location fails to meet the Code of Practice regulations (Schedule 1 – Signage) set by the Claimant’s ATA, the IPC. Part B.2.1 states: “It is therefore of fundamental importance that the signage meets the minimum standards under this Code as this underpins the validity of any such charge.”

ii. The elements of offer, acceptance and consideration both ways have not been satisfied, therefore no contract can exist and the Claimant has no case. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.

iii. Even if a contract had been formed, which is denied, the unclear and conflicting signage would render the contract unfair and unenforceable under the Consumer Rights Act 2015. Further it is noted as trite law that a term that is forbidding cannot also constitute an offer; the signage does not offer an invitation to park on certain terms, so no contract can exist.

iv. Even if the driver had managed to spot one of the contradictory signs, which is denied, they could not reasonably be expected to comply with different terms of parking claimed by different signs on the same land, and the principle of contra proferentem would mean that such ambiguity should be resolved in the Defendant's favour.

<CONTINUES ..>