Gladstones County Court Claim Form Received 13/08/18

dredd29

Castle

I see that the Licence Agreement was signed more than 4 years after the apparent start date of 1st April 2011, which is the same day Bransby Wilson Ltd changed its name to Bransby Wilson Parking Solutions Ltd.
(Bransby Wilson Parking Solutions don't own any land, so there's no proof of landowner authority).

dredd29

Hi Coupon-mad

Thank you so much for your input. I have edited the document and above kindly ask is point 9 applicable as above pictures they have provided a contract document if correct ? Also added a few more pics of the entrance road showing no signage.

Re-edited as follows:


1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver’s alleged breach of contract when parking at xxxxxx xxxxxx retail car park on the xxth.

2. The defendant has visited the said car park as a result of this claim. It was noticed that there is no prominent signage at the entrances to the site from the main road and within the car park itself. Photos and video footage are to be presented as evidence of the inadequate notice of any contract.

3. Any signage present is simply unreadable whilst driving. In addition, it is placed in locations where it is not obvious to the driver i.e. blind spots from the drivers’; line of sight, near give way lines before mini roundabout where a driver would ‘look right’; as per the Highway Code. Therefore the signage on this site is inadequate to form any contract with the motorist.

4. The Defendant parked on an unmarked area, avoiding those parts of the site that had yellow or hatched line markings. In evidence, photographs will be provided of the areas with and without road markings.

4.1. If the Claimant had a genuine intention that all of the roadway was to be a 'no stopping zone', they could have painted all of the road with double red lines and should have placed plentiful clearway-style signage, facing oncoming traffic. The doctrine of contra proferentem* applies.

4.2. This is just one example of the ways in which this Claimant is in breach of its Trade Body (BPA) Code of Practice. The Claimant has been a member of the BPA 'AOS' for many years, so they are expected to be familiar with the words of renowned parking law expert barrister and Lead Adjudicator, Henry Michael Greenslade in his independent 'Parking on Private Land Appeals' (POPLA) Annual Reports. In the 'No Stopping Zones' section of the 2013 Report, he took time to set out for AOS members and appellants, specific requirements for clearly marking areas that are not intended for stopping/parking.

4.2.1. This Claimant has no excuse, five years later, for failure to mark an area prominently and unequivocally.

4.3. Further and in the alternative, even if the Claimant had placed enormous and prominent 'no stopping' signs and lines throughout, a driver who stopped would be a trespasser and thus, a parking firm not in possession of the land will be in extreme difficulty with any claim for an inflated charge dressed up under the excuse of 'contractual breach'.

4.3.1. This was explored in ParkingEye Ltd v Beavis [2015] UKSC 67, where the Supreme Court reiterated that it remains trite law that a parking firm not in possession, cannot sue for trespass nor damages, because there is no loss caused. Only the landowner could litigate for any trespass, to recover actual damages arising under tort.

4.4. Unlike in the completely different Beavis case, here there was no licence to park granted so there can be no breach. Where no consideration flows between the parties, there can be no contractual relationship at all.

5. The 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 for trepass, and lacks any legitimate interest which would disengage the penalty rule and allow recovery of an otherwise unconscionable and punitive charge.

6. The Claimant has at no time provided an explanation how the parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £240.05. This appears to be an added cost with apparently no qualification and an attempt at more than double the recovery, which the POFA Schedule 4 specifically disallows.

6.1. The Protection of Freedoms Act, Schedule 4, Para 4 states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

6.2. The driver did not enter into any agreement on the charge, no consideration flowed between the parties and no contract was established.

7. The Defendant relies upon ParkingEye Ltd v Barry Beavis 2015 UKSC 67 insofar as the Court were willing to impose a penalty in the 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.

7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, woefully inadequate.

7.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation.

7.1.2. The signage did not comply with the requirements of the Code of Practice of the International Parking Community (previously Independent Parking Committee) Accredited Operators Scheme.

7.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw 1956 EWCA Civ 3.

7.2. The signage where the vehicle was photographed is not within the car park areas merely on a public road running up to the car park therefore making it inadequate to see or questionable whether it was applicable to the location, the full terms are in small writing making it illegible and does not mention what restrictions apply to the carpark in question. The Code of Practice of the International Parking Community (previously Independent Parking Committee) scheme, states that should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign. The signage in the area does not meet this requirement.

7.2.1. The signage states that it is for use of Mecca Bingo patrons only, and that such patrons be on the authorised user list. The sign does not state how to be on the authorised user list but does state that customers can use the parking site so it is a frustration of contract.

7.2.2. It is therefore denied that the signs used by this claimant could have formed a fair or transparent contract with a driver or was capable of being formed in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case.

8. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.

8.1. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.

8.2. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.

8.3. 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.

9. 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). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's 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.”

10. The particulars of the 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). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is ‘roboclaims’; and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

11. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). 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.''

12. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), 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.''

13. Even 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 failure to comply with points #12.4 above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all.

14. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

15. Furthermore, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. 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.

16. 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.

17. The Claimant is attempting to claim additional charges such as solicitors and legal costs of £140.05. 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.

18. In view of all the foregoing the court is invited to strike the matter out of its own motion. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.

19. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Defence are true.

Le_Kirk

4. The Defendant parked on an unmarked area, avoiding those parts of the site that had yellow or hatched line markings. In evidence, photographs will be provided of the areas with and without road markings.

6.1. The Protection of Freedoms Act, Schedule 4, Para 4 states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

6.2. The driver did not enter into any agreement on the charge, no consideration flowed between the parties and no contract was established.

Are you defending as keeper or driver. The above looks confusing.

dredd29

Hi Le_Kirk

Thanks for the note. Am I right in saying go into the defence and own up as driver no harm in this ? Is that the right strategy ?

Thank you for everybody’s time and input so far I have to submit this by Friday at the latest ideally before so it’s in. Please can I ask Forum members if anything has been missed / anything further to add to the draft above ?

Please can anybody throw their gut feeling in to the mix through experience with others whether this would go to a hearing or in the main what would happen next after defence ?

Thank you for everyone’s time.

KeithP

As in post #41:

...you have until 4pm on Monday 17th September 2018 to file your Defence.

Le_Kirk

Your defence should reflect the way you appealed initially and at POPLA (assuming you did) you don't want to be changing horses mid-race. I wasn't advising one way or the other just pointing out that it was confusing and I wasn't sure whether the Keeper or the Driver was defending, what chance would the Judge have?

dredd29

Hi KeithP

Thanks for the reminder I phoned the Court telephone number about a week ago and they advised I had 28 days to submit from the 18/08/18 hence trying to stick to this or better it so it’s in for piece of mind !

Thank you for your help.

KeithP

dredd29 wrote: »

Hi KeithP

Thanks for the reminder I phoned the Court telephone number about a week ago and they advised I had 28 days to submit from the 18/08/18 hence trying to stick to this or better it so it’s in for piece of mind !

Thank you for your help.

And they are almost right.

18th August is the date of service, being five days after the date of issue, and you have 28 days from then to file your Defence - which is Saturday 15th September.

If the calculated date falls on a non-working day then you are allowed until 4pm on the next working day to file your Defence.

That's why I said:

...you have until 4pm on Monday 17th September 2018 to file your Defence.

But no need to take my word for it, read it yourself in the Money Claim Online (MCOL) - User Guide.

On page 14 of that document it says:

How long does the defendant have to respond to my claim?

The court will send out a claim pack to each defendant once the claim has been issued and allows 5 calendar days from the date of issue for the service of the claim. Therefore the 'date of service' is the 5th calendar day after issue. Please note, if you have served separate particulars of claim then this may affect the deemed date of service (as above).

The defendant has 14 calendar days from the 'date of service' to file a response. If the last day for filing the response falls on a day that the court is not open (i.e. a weekend or public holiday), the court will allow the next full working day for a response. The defendant can extend the time to respond to 28 calendar days by filing an acknowledgment of service (AOS).

dredd29

Hi helpful forum members !

Bump to the top any further comments / help / input into the final draft above before I submit over the next 24 /48 hours as my defence ?

Your help is very much appreciated.